INAUGURAL ADDRESSES OF THEODORE W. DWIGHT, PROFESSOR OF LAW, AND OF GEORGE P. MARSH, PBOFESSBO OF ENGL1gH- LITBEATURE, IN COLUMBIA COLLEG E, NEW YORK. NEW YORK: BY AUTHORITY' OF THE TRUSTEES. 1859. WYNKOOP, HALLENBECK & THOMAS, PRINTERS, No. 113 FULTON STREET, NEW YORK. AN INTRODUCTORY LECTURE, DELIVERED BEFORE THE LAW CLASS OF COLUMBIA COLLEGE, NEW YORK, ON MONDAY, NOVEMBER 1, 1858, BY THEODORE W. DWIGHT, PROFESSOR OF LAW, &c. OUR MUNICIPAL LAW, AND THE BEST MODE OF ACQUIRING A KNOWLEDGE OF IT. Gentlemen of the Law Class: THE subject to which we invite your attention is the science of Municipal Law. This science, although special in its character, has relations to law in general, and cannot be comprehensively studied without tracing those relations or connections. Most writers upon special subjects of Jurisprudence, as, for example, Blackstone in his commentaries upon our Municipal Law, or Hooker in his "Ecclesiastical Polity of England," introduce their theme to the reader by a general disquisition upon law in the abstract-upon the divine law as revealed in the Bible, upon the law of nature and of reason-and thus deduce their own topic from the wider principle. Hooker, by a bold personification, represents all nature as actually rendering a voluntary and a glad devotion to the Supreme Lawgiver, as it yields an unswerving obedience to appointed laws. "What if," says he, "nature 1 2 MR. DWIGHT'S ADDRESS. should leave for a while the observation of her own laws; if the frame of that heavenly arch erected over our heads should loosen and dissolve itself; if celestial spheres should forget their wonted motions, and turn themselves any way, as it might happen; if the prince of the lights of Heaven, which now as a giant doth run his unwearied course, should through a languishing faintness begin to stand and to rest himself; if the moon should wander from her beaten way, the winds breathe out their last gasp, and the clouds yield no rain-if all this present joyous obedience of nature should be intermitted, what would become of man himself," &c. He then proceeds to speak of the law of reason, of the law of nations and of civil society, until he comes by easy gradations to his immediate subject. Such a view would carry us too far from the theme immediately before us, and, while we recognize the connection thus indicated, we will at once apply ourselves to our own municipal law. By one, the term law is briefly defined to be "a rule of action;" by another, it is said, "that which doth assign to each thing the kind of work, that which doth moderate the force and power, that which appoints the form and measure of working, we call law."* *Hooker's Ecclesiastical Polity. MR. DWIGHT'S ADDRESS. 3 By municipal law we mean the rule that governs us in our civil conduct, under the fundamental law of the State. This is divided into common and statute law; the first rests upon general usage as its basis, and is ascertained by judicial decision; the other is directly originated by the Legislature. I shall not attempt on this occasion to give a detailed account of the principles of our Municipal law. In the short hour allotted to me, I could present but a barren outline of its provisions. I shall have accomplished my purpose, if I sketch its origin, some of its vital, distinctive principles, the mode of its growth, and its present condition. It is to be stated at the outset that Americans did not lay the foundations of American Jurisprudence. These were built by other hands. Our forefathers found the common law complete in its essential parts. They adopted it without shrewd inquiry into its origin. They even claimed it as an indefeasible right under the sacred law of descent. Whether induced to leave their homes by persecution, or allured by the persuasive voice of ambition, or charmed by the prospects of immediate wealth-whether they came with their fortunes or destitute of means-whatever else they brought with them, or whatever they abandoned, they claimed the law of England as their own; as part of their own persons; as inhering essentially 4 MR. DWIGHT'S ADDRESS. in the very notion of their property. The very term was, doubtless, dear to them. It was the common law. It was like the common sun that lighted them, the common air they breathed. They no more thought of criticising or questioning the legitimacy of the one than of the other. Here, without class distinctions, it sheltered the evil and the good. It had in part originated in the forest; it protected the hardy sons of our forest, expanded with their growth, and still continued to govern them as their once uncultivated wastes were organized into States and blossomed with imperial cities. The Roman law, which is the basis of the legal codes of Continental Europe, had been termed the civil law. It treated the individual as an incident to the State, and regarded him in the main as a citizen. To it we owe our city corporations, and our now sacred right of local self-government. The common law, however, regards the person more strictly in his individual nature, and bears proudly on its front personal freedom, considering the State as the means for individual protection and development. The flame of liberty which we can perceive, through the vistas of history, gleaming from the morasses of the German forests, was carried to England, where it burned with a purer light. No rude blast was allowed to quench its virgin fire. The early Englishmen cov MR. DWIGHT'S ADDRESS. 5 ered it, while it kindled, with their shields, till Magna Charta, in every line, grew ruddy with its glow. The exact source of the common law no one can trace. It was formed at the confluence of many separate streams. Undoubtedly the Roman law contributed largely to its formation. Mr. Spence has shown this at large, and with elaborate research, in his work called "the Equitable Jurisdiction of the Court of Chancery."* * This point is still debated among law writers. If, however, any one will examine Bracton's very early work with care, comparing it closely with parallel passages in the Institutes of Justinian, he will be greatly impressed with the fact that the arrangement of subjects, collocation of passages, and the precise language of Justinian are reproduced by the later author; He will be almost persuaded that he is reading " The Institutes." How Lord Campbell (Lives of the Ch. Justices, vol. I., p. 63) can say that Bracton uses the civil law only for illustration, I cannot conceive. Although he was a civilian, yet he does not write as though his statements were new, but propounds them as accepted rules. However, Cooper, in his work on "The Public Records," vol. II., p. 401, says, that there are two distinct recensions of Bracton, in one of which many of the passages borrowed from the civil law do not appear. " The laws of all nations are, doubtless, raised out of the ashes of the civil law," per Lord Holt, 12 Mod. R., 482. Still, it is fair to say, that the Germans, Anglo-Saxons and the English, in succession, have, in many instances, shown a spirit of hostility to the Roman law. Florus states, that when the Roman commander, Varus, had the control of the German provinces, he endeavored to govern barbarians by the civil law, which they regarded as harsher than his arms. And while he was citing them before his tribunals, they attacked his court and destroyed his legions. Having taken one of the lawyers a prisoner, after cutting out his tongue they sewed up his mouth, crying, " Now, viper, cease to hiss"-vipera sibi. lare desiste. Book IV., cap, 12. When the Saxons first attacked England, they, like the other barbarians, had a great aversion to towns, and suffered those who'were engaged in trade to carry on their employment undisturbed. In the country, however, they appear to have seized the whole of the land, and to have driven the former owners into exile, or to have reduced them into slavery. Their complete 6 MR. DWIGHTS ADDRESS. The Anglo-Saxons contributed invaluable results; above all, in the respect for personal freedom, and in the love of order, and perhaps in a rudimentary trial by jury. It may be that relics of the old Briton law may remain,* though Gibbon's remark is unquestionably true, "that before the irruption of the Saxons, England had been moulded into the elegant and servile form of a Roman province," while some of Rome's greatest jurists sat there in the seat of judgment With other points of resemblance between the development of England and the United States, they are strikingly alike in this respect, viz.: that each is a composite nation. In the beginning, England was a prize for the valiant; in later times, an asylum for the persecuted and the outcast. "All such have crossed the sea, and made the great island their country. Thus England has thriven on misfortunes, and grown great out of ruins." These various races who have struggled there for the mastety, or have resorted subjugation of the natives appears from the fact, that their laws are written in their own language. (See Spence's Origin of Laws.) Every reader of English history will remember that, after the Norman conquest, the people continually demanded the restoration of the old Anglo-Saxon laws. This feeling may have been carried too far, in some respects. See Bell's Commentaries, 1, 11. "That dread of the arbitrary maxims of the civil law, which has been the distinction and the boast of England, has perhaps produced a bad effect in matters of municipal regulation, though of invaluable benefit in the formation of the constitution." *" Questionless, the Saxons made a mixture of the British customs with their own."-Selden's notes to Fortescue, de Laudibus legum Anglice, chap. 17. MR. DWIGHT'S ADDRESS. 7 thither as a refuge, have had a powerful effect on the development of the law. Like the composition of forces in mechanics, the combination of the contending powers has contributed to a resultant force in a new direction. Thus, while we may admit that the English law incorporated into. itself many of the doctrines of the civil jurisprudence of Rome, and while it may have no claim to compare with that splendid code for scientific precision, breadth and comprehensiveness of view, and while the English language may not express legal formulae with the rigorous accuracy of the Latin tongue, yet we may with pride remember that this plain common law contained within itself that potential and vital element so lamentably deficient in the former —legal protection for individual freedom. "The political law of Rome is moulded," says one, " in its later forms in an oriental seraglio, and was fit only for a debased and servile population." Although the early English law writer, Bracton, copied in his treatise that courtly and submissive maxim of the Roman code, "what pleases the prince has the force of law,"' it did not become an admitted *Book 3d of Actions, chap. 9. Although Bracton admits this maxim, yet in a fine passage in the same connection he indicates the principles which ought to govern the conduct of the King. "The King ought," he says, "to exercise the power of law (which is the power of God), as if he were the vicar and minister of God on earth; the power of doing 8 MR. DWIGHT'S ADDRESS. principle in jurisprudence. This exotic could not be made to flourish upon British soil. The true theory of trial by jury is peculiar to the common law. This mode of trial was not created by the great charter, but was secured by it. It was so well known then as to be described by mere formulary words. The freeman was not to forfeit his wrong belongs to the Devil, and not to God. Therefore, while he acts justly, he is the vicar of the Eternal King; but, when he turns aside to do wrong, he is the minister of the Devil. Nothing is so appropriate to imperial authority as to rule according to law, and to submit to the law is greater than it is to govern. He should pay a proper respect to the law, for it is that alone which made him King. He is no King whose will rules and not- law. Let him be just as well as merciful, and let his eyes so precede his footsteps that his judgment shall not vacillate from want of knowledge, or his merciful nature be deceived from want of circumspection," &c., &c. The whole section is worthy of perusal. Still he furnishes no remedy for the King's wrong acts, for he says in another place, "As, however, no writ can be directed to him, his subjects can only petition that he will correct and change his evil course, which if he will not do, it is sufficient punishment that he will hereafter meet the Lord as his judge. Let no one presume to dispute his acts, much less to oppose him." [Although Bracton, according to Lord Coke, lived when Magna Charta was granted, yet it is not much dwelt upon or recommended by him. Barrington on Statutes, p. 1. His work was published between 1262-7.] Fortescue, in his book " De Laudibus legum Anglis," written in the reign of Henry VI. (1463), a book replete with noble thoughts, repudiated the civil law doctrine. In his assumed conversation with Prince Edward, he says, " Let it not trouble you, most noble prince, to know whether it is best for you to study the civil or common law, for the King of England cannot change or alter the laws of his nation at his pleasure. For he governeth his people by power not only royal, but also politique. The civil law says, what pleases the prince has the force of law. But this much differs from your power, for the people are ruled by such laws as they themselves desire. Rejoice, therefore, 0 Sovereign, and be glad that the law of the land is such." Old translation. He represents that many of the former kings of England were continually annoyed because they could not introduce this slavish principle into the English law. This view is confirmed by the existing formula of assent to a law passed by parliament-" le roi le veut." MR. DWIGIHT S ADDRESS. 9 life, liberty, or property, except by the judgment of his peers, and by the law of the land.* Though the Roman law recognized the selection of a body of men to whom legal questions might be submitted, somewhat analogous to a jury, yet it did not make the grand and capital distinction which has preserved our theory so long, and has incorporated it so fully into the fundamental law of our States, that a criminal on trial cannot dispense with its full number, even if he will. The select body, in the Roman procedure, in its later development, pronounced both the law and the fact.t They ultimately needed assistants, or assessors who knew * I am aware that some writers explain these words differently. Mr. Hallam and Mr. Reeves are of opinion that the words " law of the land " refer to trial by combat or ordeal, while Mr. Forsyth, History of Trial by Jury, pages 108-12, insists that the words "judgment of his peers " do not refer to trial by jury. His main argument rests upon the use of the word judgment. He urges that the verdict of the jury cannot be called a judgment, and believes that the words refer to trial in county and manor courts. It seems incredible that the barons of England should have made this great State paper hinge on trial in manorial courts and on the law of combat and ordeal Technical legal rules may be pressed too far in interpreting national documents. Trial by jury was originally a trial by witnesses from the vicinage, who informed the judge of what they themselves knew. It seems probable that, while they relied mainly on their own knowledge, they also heard the statements of others. In the progress of jurisprudence, they were required to decide only on what was laid before them as evidence. t Savigny, History of Roman Law, vol. I., ch. 4. While admitting the above proposition, in regard to the jurisprudence of the middle ages, he regards the earlier Roman practice as quite similar to our own. In this he appears to have been mistaken. The Roman judex or juryman did not render a verdict for the court to act upon, but gave the judgment. This is a very important distinction, for, under this rule, the functions of the juryman were in the same danger of being absorbed by the judge, as in the middle ages. 10 MR. DWIGHT'S ADDRESS. the law. These associates were usually wily and subtle men, who were conversant with the intricacies of jurisprudence. They gradually elbowed out their unlearned companions, until all the questions were decided by a body of judges who had no sympathy with the people at large. The law became more scientific, but the arbitrary maxims borrowed from the Roman codes were thus introduced into the laws of most of the nations of Continental Europe. In France, justice became not a duty, but an inheritance. The right of judicature was used as a means of personal gratification. The bar, as Stephen tell us, "formed not a profession, but a caste; a distinct noblesse, in favor of aristocratic rights, and the rights of the King. The aristocracy of the robe had no alliance with the democracy of the jury box."* But with the great and distinctive idea of English * Fortescue says, "that no other nation of the time could have a jury because of their condition. England had much pasture land and great numbers of cattle: in other countries men were mainly devoted to tilling the ground, which rural exercise engendereth rudeness of wit and mind." "England is so filled with landed men that a'thorp' cannot be found so small where dwelleth not a Knight, or an Esquire, or a Franklein, or other freeholder, while there are many yeomen of substantial means to form a jury. In other countries the noblemen have small store of pasture and live far apart; so, as these cannot be assembled, the jury must be made up of poor men who are not ashamed of infamy, or are so blinded with rustic and brute rudeness as not to be able to behold the clear brightness of the truth." De Laudibus, 65, 69. His description of the England of his day is very attractive. MR. DWIGHTIS ADDRESS. 1 jurisprudence, that the Jury are to take the law from the court, it cannot disappear from our tribunals. Nor ought it to fall into disuse; for, aside from the protection furnished to the individual, its value as a means of education to the people at large cannot be overestimated. The humblest citizen is taught to think, to analyze, to compare evidence; while, if he be at all thoughtful, he cannot fail to perceive that a new dignity is conferred upon him, as he wields one of the greatest powers exercised by the Supreme Being over man-the power of judging of his acts. Although this principle has been grafted on to the law of some of the countries governed by the civil code, it has seemed to grow like a scion on an alien stock.* So, too, the bold maxim, that " Every man's house is his castle," though evidently the product of an age when private wars were in vogue, and men defended themselves by their own arm, breathes the free spirit of the forest and the fastness. It is not the polished From 1791, when trial by jury was introduced into France, to 1848, the law concerning juries was changed no less than twelve times! Edinburgh Review, October, 1858. The author of the able article referred to favors the introduction into Scotland, in criminal cases, of our principle of an unanimous jury. See Forsyth, " Trial by Jury," for a full account of the European nations which have introduced the system, and the partial success which has attended its introduction. In Buckle's History of Civilization, chap. 9, are some very good remarks on the difference between individual development in England and in France, although, in pursuit of a favorite theory he does not give sufficient prominence to the Anglo-Saxon element in English character, nor to the training acquired by those who participate in jury trials. 12 MR. DWIGHT'S ADDRESS. phrase of a Cicero or Hortensius, nor can its equivalent be found in the pages of any Roman jurist. The Roman lawyer Gaius says a man's house is his refuge. So is the sheepfold for the lamb; but what cares the wolf for that when he enters. The common law declares that a man's house is his fortress, which he may defend against all assailants, even the chief magistrate himself, unless the intruder comes armed with a legal mandate in a proper case. I barely notice those delicate theories of the common and statute law, in regard to personal security and personal liberty, so delicate that the most sensitive lady could not wall herself around with a protection more complete than the law itself furnishes, as well as the theory that each individual who violates the rights of others is personally responsible, and cannot shield himself by proving the mandate of a superior officer. In these respects our law may claim a proud pre-eminence, as long as man is of more consequence than the property which he possesses. In fine, speaking in general terms, but two systems of civil jurisprudence have challenged the attention of the world: the civil law of Rome and the common law of England. The first drew the most refined and philosophical distinctions in regard to property. The more it is studied,'the more its truly symmetrical and majestic proportions strike the beholder with MR. DWIGHT'S ADDRESS. 13 astonishment. Its penal code was in many respects equitable, but in the matter of personal rights it had yielded to absolutism. It was like an accomplished gentleman, who had every grace except that he lacked independence and personal freedom. The common law, on the other hand, was in many respects rude and unphilosophical; it was, in its early forms technical to the last degree; its discussions were often puerile, and its solutions worthless, but it had in most vigorous life precisely that element which the other system lacked. It was not ashamed to borrow of the civil code many of its best provisions, for it had vigor enough to assimilate them, and incorporate them into its own growth. It was the rude man of the country, capable, by contact with civilization, of receiving the highest polish, and it was free. The one has aided to produce continental Europe, the other, England and the United States. In the next place the English law has a history parallel with English progress. The great epochs in the history of the nation are eras in the history of constitutional and municipal law. These two are so closely connected together, that it is almost impossible to separate them. When William the Norman, in the year 1066, conquered, or, as Sir William Blackstone in more polished terms expresses it, acquired England, he with rough hand repressed the murmurs 14 MR. DWIGHT'S ADDRESS. of a discontented people, and laid upon them all the heavy burdens of the feudal system. After him England had its rulers who legalized oppression, and systematized rapine. So far had this gone, that in Stephen's reign men openly inveighed against Providence, crying aloud that "Christ and his saints were asleep." The great progress of England has consisted in protecting the person, and in shaking off the fetters from the law of her landed property. I do not mean that she has abandoned feudal theories. for these are so entwined with the growth of the law, that to pluck them out would be to root up the law itself; but I speak of the feudal clogs on transfer, the exactions and tyrannous burdens of the system. Even her wars have been but of little consequence, except so far as they have effected legal and constitutional alterations. The sea-girt isle has always been too firmly anchored to feel sensibly any shock from without. The surface of English society has not been disturbed by exterior storms, but by internal volcanic eruptions. Their wars, when not civil, have been fought on foreign soil. Her citizens may have been allured by the visions of glory, but they have not been compelled to summon all their energies for the exercise of the sacred right of self-defense. If you ask them where are the events of interest in their MR. DWIGHT'S ADDRESS. 15 national life, they do not point to Agincourt or Blenheim, or even to Waterloo, but to Magna Charta, the Petition of Rights, the Habeas Corpus Act, and the Bill of Rights. Magna Charta itself contains provisions of a strictly legal nature-such as the one which secures a widow's right of dower with her quarantine. The members of the bar and the judges sprang from the people, and by means of the jury were always in contact with them. In fact, the bar formed one of the ties by which the middle and lower classes were bound up with the aristocracy. Many of the Chief Justices, like Lord Chief Justice Hale, had the advantage of being born in the middle ranks of life, of receiving a liberal education, and of being obliged to depend on their own exertions for distinction. Those who were descended from the aristocratic classes were almost all younger sons of younger brothers, and had their fortunes to make and their fame to achieve. They sympathized with the progress of society. When the legislature endeavored to establish entailed estates, the judges by a pious fraud defeated them; when a further attempt was made to introduce perpetuities, under the subtle doctrine of contingent uses, Lord Bacon, in his character of lawyer, suggested the general principles of that happy medium, by which estates can be locked up in families for a well-ascertained and limited period. When Charles the First 16 MR. DWIGHT'S ADDRESS. needed to be checked in the undue exercise of his prerogative, "our great master," Lord Coke, framed and carried the "petition of right" with such lawyers as Selden and Pym to advocate it. When the old writ of Habeas Corpus, which sprang out of Magna Charta, needed to be fortified and strengthened by new provisions and penalties, Shaftesbury, once Lord Chancellor, promoted it. When'the House of Stuart was driven from the throne and the English constitution was to be secured for all time, the draft of the substance of the great state paper of that period made the name of the distinguished lawyer, Somers, immortal. To a prominent member of that profession, Sir S. Romilly, it was left to suggest the principles of reforms in the criminal law, while the recent great changes in the administration of the civil code have been fostered by such men as Lords Brougham, Campbell and others, although due credit should be given to the philosopher Bentham, for the suggestion of fruitful ideas. It is true, that leading lawyers have opposed many of these changes, and that others, not lawyers, have been greatly instrumental in the introduction of some or all of them. I do not deny that, in the progress of the law, individual members of the bar have been oppressive and unjust, and that bad monarchs have found among them pliant, expert and unprincipled servants. Still it is also true that, MR. DWIGHT'S ADDRESS. 17 in every crisis where a bold patriot and statesman from their body was needed, he could readily be found. In no one instance, as in France before the Revolution, have the whole profession abandoned the people. The influence of the legal profession can also be traced in the cautious and conservative character of all the changes in the common law. From the earliest state paper down to the latest, the plan of the patriot lawyers has been, to retain, so far as practicable, the old; to add, by way of amendment,the new. In the same spirit was our own United States Constitution formed. When the old Confederation was found to be illogical in principle, and utterly inefficient in action, it was not resolved to discard it, but only to form a more perfect Union-to establizsh justice —to insure domestic tranquillity. There have been more elegantly devised schemes of government, both in this country and abroad, than either of these constitutions-logically faultless-beautiful in their mechanism-their only possible defect was, that, when an effort was made to put them in motion, they would not go. On, the other hand, the English constitution, largely framed by lawyers, full of contradictions and absurd legal fictions, has been practical and effective, and in its development has made rich and free one of the greatest nations of the earth. 2 18 MR. DWIGHT'S ADDRESS. This historical progress of the law is important in another point of view-it greatly complicates its study. There is a large class of questions in the English law which ought to have no place in a truly philosophical system of jurisprudence. These may in general terms be called questions of forum-the inquiry is not what a person's rights are, but where they must be enforced. So that rights which are denied in one court are granted in another. The Roman theories of jurisprudence admitted no such view. Her law, in its full development, was as comprehensive as her empire. When she had conquered a nation, she annexed it, incorporated it, assimilated it, while important legal questions arose which could only be settled by a true philosophy.* Although, down to the destruction of the empire, there was a distinction between cases of ordinary and extraordinary jurisdiction, analogous to our distinction between law and equity, they were both examined by the same judicial officer. Great Britain was * "Rome, in her colonies, continually reproduced herself; every colony was but an image of the mother city, with like holy rites, like courts, like laws, temples and places of public commerce." —Selden. The early forms of the Roman law were very technical. As the republic expanded its limits it became necessary to liberalize her jurisprudence. Savigny gives an account of the conflict between the old jurists, who strove to preserve the fixed forms of procedure, and the judges who wished to introduce broader principles to meet the exigencies of the case. The author shows, in a truly philosophical spirit, how all law must be treated as an index of a nation's development, and that the progress of legislation is not governed by chance, but is the expression of the very life of a people. MR. DWIGHT'S ADDRESS. 19 insular and isolated. If she had gained territory, she would have governed it as a mere dependency, and would have applied to the colonists the narrow rules of the common law. She had no great legal questions with which to deal in the early periods of her history. Her courts were created by accident, or gained jurisdiction by quarreling for it, or by filching it under the guise of some subtle legal fiction. The higher clergy had the care of testaments, and of the administration of estates, and the court of admiralty of certain questions arising at sea.* The common law courts dealt with crimes, personal actions, and questions in regard to land, while their views in some respects were so narrow that the Court of Chancery was obliged to supply the defects *The jurisdiction of these courts is said to have been obtained by encroachment. "The common law had cognizance in Edward First's time of things done upon the sea; however, afterwards it kept its limits within the body of the county, leaving the sea to the Admiralty." Selden's notes to Fortescue, chap. 32. He cites to the point of jurisdiction of the common law courts, a case in 25th year of Edward First's reign (fol. 82), with several other cases. " The cognizance of wills and testaments does not belong by common right to the ecclesiastical courts, but to the temporal or civil jurisdiction, yet by the custom of England it pertains to the ecclesiastical judges." Hale's History of Common Law, p. 28. The jurisdiction was settled in Bracton's time. He says: " Si de testamento oriatur contentio, inforo ecclesiastico debet placitum terminari, quia de causa testamentaril (sicut nec de qausa matrimoniali) curia regia se non intromittit." Book 2, p. 61. It is even recognized at an earlier period by Glanville. There is reason to believe with Dwarris (on Statutes, p. 5769), that the jurisdiction of the ecclesiastical courts was not strictly usurped, but grew out of positive enactments by William the Conqueror. Bentham, vol. 2, p. 179, states forcibly the complexity of English procedure. 20 MR. DWIGHT'S ADDRESS. in their administration of justice. The Court of Chancery grew out of the practice of appealing to the king's prerogative for redress in cases where the positive law was deficient. The king, being unable personally to decide the cases that sprang up, heard the cause in council or delegated the duty to his officer, the Chancellor, then always an ecclesiastic. The Chancellor, in the early history of the courts, proceeded without adherence to rule. He would direct the parties to go before arbitrators, or he would mediate between them himself; or he said to them that he would talk with some great man in regard to the case. Some of the early decrees are sufficiently singular. Thus in one case the court say, "Considering the honorable dealings of the plaintiff during her whole course of life, and of the good opinion had of her counsel, the Court thinks well of her title, notwithstanding the allegations and proofs to the contrary." It was emphatically a court ofgoodfeelizg. A plaintiff had failed in his suit, and had been condemned to pay costs. The court say, " Considering that he is a poor boy, in very simple clothes, and under twelve years, the costs shall be remitted." The costs for dismissing a bill were as remarkable as any part of the case-only twenty shillings. As the Court advanced, although it disregarded form, and took for its guide general jurisprudence, and looked MR. DWIGHT'S ADDRESS. 21 for substantial justice, it became bound down to a set of rules and was governed by precedents. These must now be studied as a science, and are not to be discovered, as many suppose, by the plain, common sense of a layman. Many have supposed that this very division of remedies among separate courts has conduced to greater precision in the law, and that different rules can be adopted therein to meet the public convenience and promote real justice. Without entering upon that question, it is only our purpose to show how much the labor of the student is increased. Nothing is more distressing to the learner in jurisprudence, in the outset, than the apparently conflicting views taken in the different Courts., In his common law books he finds it positively laid down that husband and wife are one, that they cannot sue each other-that they cannot contract together, and that all the wife's personal property belongs to the husband. Having treasured this up, he learns in his equity books, that they may be in that Court two clos'ely contending litigants, pursuing each other with rancor, not necessarily veiled even under the forms of courtesy-that they may contract together in a proper case, and that the wife's separate property does not belong to her husband. In his common law books he learns that 22 MR. DWIGHT'S ADDRESS. a mere finder of goods upon land has no lien upon them, even if he has rescued them from injury; in the Admiralty books he learns that a finding or saving at sea, or under the jurisdiction of that Court, is "highly meritorious," and that the salvor is carefully protected in his rights-so that, if he should save a sunken or abandoned boat, with its contents, in the Hudson River, where the tide ebbs and flows, he would have a lien upon the property, which would be recognized even in the common law courts; if above tide-water, he would have no lien on the goods, even though he had used the same exertion, and perhaps would receive no compensation at all, unless the act was done with the knowledge or consent of the owners. In studying the law in regard to wills, their proof and validity, he finds that a decision of the Surrogate (who represents the Ecclesiastical Courts of England in one branch of their jurisdiction), in regard to the validity of a will of personal estate, if not appealed from, or reheard in a limited period, is conclusive; but that, if the will includes both real and personal estate, so far as the real estate is concerned, an appeal from the Surrogate's decision is wholly unnecessary, and that for a long series of years the question may be raised anew in the common law courts; or, if the case has been appealed from the Surrogate to the highest Court on MR. DWIGHT'S U)DRESS. 23 one branch of the property, and has been decided after the appeal, still he may bring a new suit in regard to the real estate, without any reference to the decision of the appellate Court. Thus it may happen that on the same will, and precisely the same state of facts, it may be decided that the testator is sane enough to make a will as far as his personal property is concerned; and that he is so insane that he cannot make the will when the real estate is considered. The only possible reason for this latter theory is the one given by Ch. Baron Yelverton, in the House of Lords,* that the cases are heard by different jurisdictions! The anomaly does not exist from the fault of the judges, for they have regarded it as an absurdity, and recommended its abolition, from Lord Hardwicke's time down to the present day.t The importance, then, of studying the law historically cannot be too strongly inculcated. Some of the leading questions of our time have been fully illustrated only by the industry of those who have traced * 1 Ridgeway, P. C., 277. f 2 Atkins' R., 379. There are some early decisions on this point in Croke's Reports. In King James First's reign, an effort was made to induce the Courts of ordinary jurisdiction to prohibit the ecclesiastical judge from hearing the case, on the ground that his decision might influence a jury, when the cause came before them. Commissioners appointed in the time of the Commonwealth recommended the abolition of this branch of the jurisdiction of the Ecclesiastical Courts. 24 MR. DWIGHT'S ADDRESS. the whole course of legal history. For instance, the question, in what cases dispositions by will to charitable uses are valid, was thus carefully examined "in the Girard College case" by Mr. Binney, and the means furnished to the Court for a discussion of the true doctrine upon that involved and intricate subject. Adhuc. sub judice Uis est. While, then, the student is mastering the present law, he must descend through all the strata of centuries, hammer in hand, till he comes to the hard granite of the feudal system. It would in general be useless to seek to get any lower, or to chip away much of its substance. He may look and pass on. In the secondary and other formations he will find many rare things of value, not merely fit to be laid away in the cabinets of the curious, but which can be polished and fitted for immediate use. This historical examination may in part accompany, and in part succeed, the systematic study of the present law,* It is another prime feature of the common law * The Roman code recognizes the necessity of an historical study of the previous law. Says Gaius, in a passage quoted: "Being about to interpret the laws, I must go back to the very origin of the city, not because I wish to make my commentaries verbose; but because I observe that I can only thus make my work symmetrical. For, if it is a shameful thing for an advocate to argue a cause before a judge, without making a preliminary statement of the facts, how much more disgraceful it is for one who pretends to interpret the law, to undertakethe task without an historical examination of it, coming to the subject, as it were, with unwashed hands." MR. DWIGHT'S ADDRESS. 25 that it has not been the mere deduction of theorists, reasoning from certain admitted principles, but that it has been slowly worked out by actual experience, announced by the judges, and formed into binding precedents. The Anglo-Saxon mind cannot admit the idea that a judge may originate law. He can only pronounce it, and that after argument, and when the precise point is involved. Everything else is a dictum-a mere saying-a bright scintillation, perhaps, from the judicial mind, but expiring with the occasion which gave it birth. Thus, in developing the law, sharp contests have arisen over tangible facts. Judicial discussions have been animated by the fierce passions of the parties to the suit. The questions of slander have not grown out of hypothetical cases, but have been actual charges, envenomed by party rancor or personal enmity. The ejectment suits were not mere mooted questions, but arose when the true owners had been turned out of possession with the strong hand. Here, under color of judicial decision, have been great battles fought. Here have been struggles for wealth and power, and contests for the prizes of party ambition. All that talent, learning, subtle disquisition, and nice analysis could do, has been done. The lawyers have at times contended so desperately as to arouse the monarch's sceptre. Thus, the development of our law has been 26 MR. DWIGHT'S ADDRESS. a great drama of centuries-a romance in its circumstances-,a drama in its action. As a general rule, where the government was not concerned,and in later times where it was, the judges perceived the excitement without sharing in the passion, and have had a solemn consciousness that they were elaborating rules for the use of future ages. A high English authority, Chief Baron Pollock,* has recently stated, from the bench, that he whom we only know as "the infamous judge Jeffries " was no bad judge when the rights of the king were not in question. Roger North, also, in his admirable life of Lord Keeper Guilford, tells us in what round terms and with what virtuous indignation the same judge berated from the bench the magistrates of the city of Bristol, for an evil practice into which they had fallen.t It is remarkable with what slowness-intolerable slowness it would be in our time-the early judges proceeded to a decision on an important point-how they had it argued and re-argued-through how many appeals and re-arguments on each appeal the * 36 English Law and Equity Reports, p. 526. t The mayor and aldermen of Bristol had become "judicial kidnappers of small rogues and vagabonds, whom they sent to America and sold." Jeffries appears to have treated these dignitaries with great severity. North, who was no friend to him, says, "that he delighted in such fair opportunities to rant." See a graphic account of the incident in North's Lives, vol. 2, p. 24-27. MR. DWIGHT'S ADDRESS. 27 case went, how long they kept it under consideration, until they, perhaps, forgot the argument, while the interests of the client were lost sight of in their anxiety not to jeopard the integrity of the law. This theory, adopted from good motives, was a mistaken one, and was shorn of its defects at the opening of the career of Lord Mansfield. A well-known and competent authority, after an examination of all the evidence, is clearly of the opinion that Shakespeare was once a clerk in a lawyer's office. As this was during the period spoken of, if he copied all the papers, and waited on the arguments, he had good reason to know what was meant by "the law's delay."* The great father of modern philosophy, profoundly versed in our jurisprudence, though disliking professional practice, adhered closely to precedent, directing Justice Hatton, when he was made Judge, to draw his learning out of his books, and not out of his brain It would be interesting to trace how Lord Bacon's legal studies acted on his philosophical speculations, and how much his caution, in reaching conclusions in philosophy, depended on the care which he used in * This delay is not peculiar to English jurisprudence. (See Fortescue de Laudibus, 127.) He says: "While I was lately abiding in Paris, mine host showed me his process in writing, which, in the Court of Parliament, he has followed eight years, to recover eight pence sterling, and he was in no hope to obtain judgment in eight years more. I also knew other cases like unto these."- Old Translation. 28 MR. DWIGHT'S ADDRESS. sifting evidence, and in weighing conclusions at the bar. By this process the municipal law of England has gained a steady and a fixed character. The principle, having been settled after the most exhaustive discussion, and the most careful examination, assumes the binding force of a precedent. Judges have sometimes struggled in a mental conflict between precedent and principle. Lord Mansfield used to say that he ought to be drawn placed between the two, like Garrick between Tragedy and Comedy. And yet this very Judge, in a great case, in which there was a difference of opinion on the bench, says, "This is the first instance of a final difference since I have been here -thirteen years. That unanimity could never have happened if we did not communicate our sentiments with great freedom; if we did not form our judgments without prepossessions; if we were not open to conviction, and ready to yield to each other's reasons." Although it is usual to account for this unanimity by stating that the master intellect of Lord Mansfield overshadowed the other judges, yet, when we consider their ability* and this declaration, it is fair to presume otherwise. How different is this from the condition of parts of the Roman law. A distinguished jurist of our * 2 Campbell's Ch. Justices, p. 395. MR. DWIGHT'S ADDRESS. 29 own country, Judge Story, has collected the opinions of the leading civilians on the subject of the conflict of laws. The wide and comprehensive research of the author has only displayed its uselessness, for, from the discordant views of the writers cited, scarcely any intelligible principle can be extracted. Instead of presenting us the conflict of laws, our ears are stunned by the conflict of opinions. Of course, large portions of that law are definite and certain, but the fact that, since its codification by Justinian, its progress as a system has been largely due to text writers, reasoning without an actual case discussed before them, while the progress of the common law has been mainly due to judicial decision, based on actual cases and discussions, forms a marked difference in the two theories of jurisprudence. Countries governed by the civil law have felt the difficulty of this theory. Spain resolved, in 1713, that it was a great inconvenience that her tribunals had followed foreign jurists and authors, to the depreciation of her own, and forbade the quoting of foreign opinions in antagonism to the views of Spanish jurists. What was this but establishing in an indirect way the rule of following precedents.* * See 17 Martin, Louisiana Rep., 583. As to the similar condition of the Roman law before the Justinian Code, see Savigny's History of Roman Jurisprudence, vol. 1, page 8. He says: "The great Roman jurists entertained, on many subjects, very different opinions, and who possessed the power of reconciling these differences by a judgment of higher authority? The decision 30 MR. DWIGHT7S ADDRESS. When law is developed in the English mode, it is not theoretical-an object of speculation or criticism; it is practical, and becomes at once a rule of action. It will be generated slowly as cases arise, and may be submitted to the tests of experience. If it appears that a wrong step is taken, it can be retraced, and the mischief corrected before the vice has permeated the entire system. It is known that Lord Mansfield almost created our commercial law, and the law of insurance. It is a sagacious remark of Lord Campbell's, that when the former had to grapple with the great questions that came before him, instead of proceeding by legislation, and attempting to codify, he wisely thought it more according to the genius of English institutions to introduce improvements, gradually, by way of judicial decision, while, he not only settled the particular case, but established with precision, and on sound principles, a rule to be afterwards quoted and recognized as governing similar cases. of lawsuits must have been exceedingly difficult, or unsteady and arbitrary. The Emperor Valentinian regulated the matter in the West by an imperial decree; the principle was afterwards adopted in the East by the Theodosian Code. By the rule then adopted, no treatises were to be cited except those of five jurists, who were named, viz.: Ulpian, Papinian, Paulus, Caius and Modestinus." A code is almost a necessary refuge where law is developed by mere thinkers; the idea of an authoritative exposition of principles must be carried out either by judicial decision or by legislation. The present very loose practice of reporting cases, both in this country and in England, threatens to introduce into the expositions of the common law the same vice of uncertainty. If reporting is not regulated by legislation, we shall be driven to a code. MR. DWIGHT'S ADDRESS. 31 Doubtless, the judges have sometimes assumed the duty of the legislator, but even then judge-made law is better than text law. In this manner the common law has been accommodated to the advancing spirit of each age. This has been especially true in the law of personal property, contracts and commercial law. The spirit of the old scholastic philosophy had so pervaded the law of real estate that few organic changes could be made. The law of fixtures, however, is an instance of a modification made to meet the changing circumstances of the times, while a court of equity, " that rib," as Bentham says, " taken out of the side of the law in the dark ages," the younger, and in some respects the comelier sister, has so treated it, in the law of partnership and otherwise, as to meet the exigencies of an advancing trade and commerce. If any new product or invention is introduced, the common law establishes rules in analogy to similar cases.* Thus, it attaches itself to the railroad, and soon there are worked out bulky volumes on the common law in regard to railroads. It applies itself to the electric telegraph, and adds that subtle and incorporeal agent, electricity, the very Ariel of * This theory is as old as the law itself. Says Bracton, " If any new and unusual case arises, such an one as has not before arisen in the Kingdom, let it be adjudged according to analogous cases, if any exist, for it is good to proceed a similibus ad similia." Chap. 2. 32 MR. DWIGHT'S ADDRESS. jurisprudence, to the list of common carriers, laying down the rules for its guidance in the transmission of messages.* In this manner the law is everywhere present, either active, or, if dormant, ready to spring into life when the occasion arises. Side by side with the study of the history and principles of law, you are also to examine legislation and its history. The statute-making power has been, in modern times, continually on the alert, changing the rules of the common law, and adopting new provisions to meet the altered conditions of society. It will be necessary to examine the principles that guide the courts in the interpretation and construction of statutes, especially in case of their conflict with the fundamental law of the State or of the United States. Legislation has a history which has also to be studied, for one statute cannot be understood without the examination of others on the same subject, and sometimes not without a more or less minute examination of the general history of legislation. The knowledge of this enacted law grows in importance every year. In our own State, we have made great changes in the common law, especially regarding real estate, while, as every person knows, we have abolished the old forms of procedure. It may be remarked in * 33 English Law and Equity Reports, p. 180. MR. DWIGHT'S ADDRESS. 33 passing, that by a singular coincidence we have gone through with the same process, in respect to pleadings, as the Romans. They had technical forms of actions; so had we. They had actions, analogous to our chancery suits. They consolidated the two, and proceeded without form. This we have done. In proceeding without form, they found, after a long experience, that it was necessary to pass a rule which we have not yet adopted. The Justinian code required that a case should not be in court more than three years. The reason given was, that suits were likely to outlast the life of man, and to become immortal. We may yet find it necessary to complete the parallel, by adopting a similar provision. By constitutional provisions from the beginning, such parts of the common law and amendatory statutes as were in use during our colonial period, down to April, 1775, were adopted as the law of this State. Taking, as we did, an entire system of law from another country, it is surprising that it could be so readily adapted to our institutions. Whatever we found unsuited to our condition, we rejected, either by judicial decision or by legislation. Thus we discarded the English theory of the descent of land to the eldest son. So the theory of ancient lights or windows, if it ever had any solid foundation in the law, to the extent to which it 3 34 MR. DWIGHT'S ADDRESS. was carried, was rejected or modified, so as to suit our circumstances. So we dealt with the ecclesiastical law, in regard to the effect of future promises to marry, and with some of the rules of law in regard to the dead. A branch of the latter doctrine has been recently shown, with elaborate research, to rest on false theories, fanciful etymologies, and in its details to be wholly alien to our most cherished sentiments, and was pronounced no part of our law.* How readily will this conclusion be acquiesced in, when we learn that, in this last year, it was decided in the high Court of Criminal Appeal, in England,t that a son might, by the common law, be indicted and convicted of a misdemeanor, who openly, and in the light of day, removed from a dissenting burialground the remains of his own father, although he was prompted by the most filial sentiments, and although he had reason to believe that the trustees of the cemetery were about to devote the ground to secular purposes. The son had not asked the permission of the trustees. The judge, who pronounced the opinion, said, " the common law recognizes no property in the remains of the dead." He then gave a singular reason for his decision, stating that if the conviction were not sustained, there would be no mode of * See Report of Hon. S. B. Ruggles, 4 Bradford's Surrogate's Reports, 503. f 40 E. L. E., 581, Regina vs. Sharp. MR. DWIGHT'S ADDRESS. 35 protecting the remains of deceased persons, interred in the burial-grounds of dissenters. As if the best way to protect them was not to decide that the son had a property in the remains of a deceased parent. Be it said, to the honor of the Bench, that they exercised a humane discretion in inflicting only a nominal fine. Doctrines like these we ought to reject at once, without waiting for legislative action. They are the result of circumstances peculiar to English history, and ought to be regarded as no part of our law. It is evident, too, to any one, who watches the development of the law of the two nations, and the course of legislation, that their jurisprudence diverges from the common point more widely every year. The common law is to be learned in a great variety of reports, and in some authoritative treatises. Among the good cases will be found many that are mistaken and worthless. They were either badly argued or miserably reported, or the " Judge mistook rapidity for the due administration of justice, and made decrees which ought to serve not as examples to be imitated, but as land-marks to be avoided by all future judges." Many of these cases have been explained, limited, criticised, or overruled in other decisions. They are declared counterfeit coin; but the inexperienced eye is in great danger of receiving them as genuine. Other cases have their authority dimin 36 MR. DWIGHT'S ADDRESS. ished, because a bare majority of the judges concurred in the decision, although, as it has been happily expressed by Justice Coleridge, late of the Queen's Bench, English judges, as a whole, "have had so much of general agreement as served to give authority to their judgments, with so much occasional difference as served to show their individual responsibility and independence." This crowd of volumes urges upon us a systematic study of the law. One must be guided by the principle rather than by the case. Even abolished law must be studied carefully, both because it governs all acts done while it was in force, and because it is often explanatory of what is introduced in its place. After Chancellor Kent had given in his commentaries an extended discussion of a legal rule known among lawyers as " the rule in Shelley's case," he appended a note to his text, in which he spoke in eloquent language of the fact that this rule was abolished by our Revised Statutes, and remarked that, so far as this State is concerned, all he had written is but a monument to the memory of departed learning. Yet, since that note was written, scores of cases have occurred in our courts, in which the abolished rule was examined, with its qualifications and limitations. Every real estate lawyer meets it, from time to time, in deducing a chain of title to land. The fact that it exists in full force in other States makes it necessary MR. DWIGHT'S ADDRESS. 37 to know it. Changes in the law only complicate the lawyer's studies. He must be alike familiar with the old rule and the new. Janus-faced, he must look both forward and backward. Notwithstanding the vital alterations that have been made in the law of husband and wife, and the more comprehensive changes that are threatened, no competent lawyer supposes that a full knowledge of the old rules will not be necessary at least during this generation. Thus, in free countries, like England and the United States, the studies of the ripest jurist are never at an end; rather, just beginning. A great German poet, if he had lived here, would not have made one of his well-known characters say that legal rights are transmitted from grandsire to grandson, like an hereditary disease.* They seem, sometimes, more like the fabrics of which the English poet speaks, "they rise like an exhalation." We will be asked if all this complexity of laws be, necessary? We reply, so long as the variety of human events is so great; while men seek wealth with energy, and compass sea and land to obtain it; while pride and vanity influence testators; while trust and confidence are reposed by man in his * Es erben sich Gesetz und Rechte Wie eine ew'ge Krankheit fort Sie schleppen von Geschlecht sich zum Geschlechte Und riicken sacht von Ort zu Ort."-GoETHE's FAUST. 38 MR. DWIGHTIS ADDRESS. fellow; while fraud assumes its Protean shapes; while the family exists, and absolute rights are regarded, so long will jurisprudence be obliged to adapt itself to these important facts in all their details. The complexity and intricacy of legal principles, I do not say of legal forms, is the price we pay for our free, advancing and refined state of society-an intricacy only to grow more intricate, and a complexity to grow more complicated. Yet it is safe to say that he, who is thoroughly familiar with the fundamental principles of law, has the thread in his hand by which he can be guided through the labyrinth. The science of pure mathematics has its settled and determined principles, which can be mastered by patience and application; when these principles are applied to celestial mechanism and the perturbations of the planets, the problems which grow up need the intellect of a La Place and a Plana to compass them. The principles are few; the objects to which they can be applied are almost infinite. Yet, through all these complicated movements and action and reaction of matter, the master mind goes with certainty, sounding the abysses with his well-known principles, and carrying the torch of exploration steadily before him. The mechanism of the heavens is none the less scientific, because it is difficult in some cases to apply right principles in the examination of its intricacies. MR. DWIGHT'S ADDRESS. 39 Yet how many regard jurisprudence, with the same difficulties to contend with, as having little claim to a scientific character! Goethe opens his great tragedy of Faust by introducing the future arch-magician in a rhapsody on the worthlessness of law and the sister sciences. He says: