T 11 E

THEORY

OF

THE COMMON LAW.

BY

JAMES M. WALKER,CHARLESTON, S. C.

At jus privatum sub tutela juris publici. - BAcoN.

BOSTON:

LITTLE, BROWN AND COMPANY.

1852.

Entered according to Act of Congress, In the year 1S52, by

LITTLE, BROWN & CO.

ir the Clerk's Office of the District Court of the District of Massachusettz.

C A 31 Ii Dt ItDG F. :At E.TCALF AND COMPANY,

PRINrERS TO THE UNIVERSITY.

THE HON. MITCHELL KING,

CHARLESTON, S. C.

SIR: -

Permit me, under your auspices, to deliver to the pro-

fession the following tractate on the law. Its object is

to exhibit the leading thought of that noble system of

jurisprudence, the Common Law, which you cultivated

with so great success during your attendance on the bar.

The reference which I make frequently to the Civil Law

will not, I trust, be distasteful to one who is so conver-

sant with Roman literature. No one is better qualified

than yourself, both in regard to a knowledge of the Com-

mon Law and the Civil, to estimate the value and diffi-

culty of my task, or to give to the attempt a more in-

dulgent consideration. Moreover, be pleased to accept

this dedication as a tribute of the respect and regard of

"an apprentice to the law" to his former master.

Your obedient servant,

JAMES M. WALKER.

CONTENTS.

PAGE

INTRODUCTION I

Chapter 1. THE STATE 13

II. CIVIL PERSON 17

Ill. REMAINDiRS 21

IV. FEE 25

V. SCINTILLA JURIs . 31

VI. CONTINGENT REMAINDERS .34

VII. CONDITIONS 38VIII. RELATION 42

IX. HEIR. -THE RULE IN SHELLEY'S CASE 45

X. WARRANTY 5 .

XI. DIVERSITY OF RIGHTS 56i

XII. JOINT TENANCY ) I

kIII. Jus ACCRESCENDI 64

XIV. USUFRUCTS 67

XV. EXECUTORY INTERESTS ., I

XVI. POLITICAL STATUS 75

XVI[ JUDICIAL OFFICE .80

XVIII. COURTS 81

XIX. CITIZENSHIP R4

XX. ALIENS .,7

VI CONTENTS.

Chapter XXI. GUARDIANSHIP 90

XXII. COURTESY 92

XXIII. DOWER 97

XXIV. DOWER AT COMMON LAW 100

XXV. MARRIAGE 102

XXVI. CONVEYANCES 107

XXVII. POSSESSION 110

XXVIII. RETROSPECT . 117

XXIX. THE TENDENCY OF THE AMERICAN LAW . 120

XXX. CONCLUSION . I 1 127

INTRODUCTION.

PART I.

THE science of law, in its most comprehensivesense, is the body of rules of human conduct whichare universally recognized as obligatory. In a morelimited view, it is the body of rules which constitutethe code of a particular state. But in either sense,the basis of every system must be truth. The uni-versal is true, because it is consistent with the natureof man ; the municipal is true, because it is consist-ent with the nature of the people subject to it. Thetruth of the municipal is not, however, the antagonistof the truth of the universal. For a law of a par-ticular state may also be a law of humanity, or itmay, as the law of aliens, be the law of every nation,without being the law of nature. The municipaldiffers from the universal only as a particular differsfrom a general truth.

A body of laws implies necessarily internal con-cordance or harmony of its rules. This agreementrenders the multitude of special rules a law, aunity. They are together one law; thus we say, thelaw of England, the law of nations, the law of na-

1

INTRODUCTION.

ture. A law signifies the relation of man to man; abody of laws, the relation of nation to nation; the uni-versal law, the relation of man to God. When a lawhas been adopted by a people from the universal, thenthat law, the relation of man to man, is the true rela-tion between man and man in the municipal and uni-versal, - is a special and general truth. That whichis the true relation between man and man is the justrelation, or justice, - absolute as to the universal, rel-ative as to the municipal. So, also, a law expressesnot only the relation of man to man, but at the sametime his relation to the supreme power. In likemanner, a body of laws, the law of England, takenas a unit, must have to the law of every other na-tion and to the supreme power the relation of thetrue and just; else those living according to that lawwill be enemies of mankind and the supreme powerthat governs them.

As the law of each nation differs in important re-spects from that of every other, each unit is difflrentin its nature, its tendency, and its mode of expression.Now, to constitute a unit of a multitude of rules,there must be some one idea which has affinity toevery rule, and around which all may harmoniouslybe grouped. That idea will control the law in everypart, and in all its modes of expression. It will de-termine the tendency of each system, and stamp uponit its own peculiar characteristics. That idea is thelife of the law, and animates every member of thebody politic. It begins with the birth, lives in thehistory, and dies in the last scene of the nationaldrama. It must be found in every relation of manto man and to society. The men of high and themen of low degree, each family qnd each child, all

INTRODUCTION.

property, history, and literature, must bear its indel-ible impression. That idea is, in short, the eminenttruth of that people; an exposition of it in its ap-plication to law is the philosophy of law.

The philosophical element of the law must beequally applicable to the public and private law of astate; else there would not be the law, but the laws,of England. In other words, one people would besubject to two coequal and discordant systems. Thetruth being then the same in both branches, the pub-lic and the private, its discovery in one is conclusiveof its existence in the other branch. Our inquiryleads us to consider whether there exists in the Com-mon Law an idea with the consequences which wehave specified. How does that idea express itself inthat system ? What are its effects upon the people,its influence upon. other systems, its power in direct-ing the movements of the mind of humanity. Thesequestions are within the province of the philosophicalstatesman. Our task is the humble one of establish-ing the existence of such an idea in the Common Law,and exhibiting its control over the rules of propertypeculiar to that system.

An indispensable instrument in the investigationof all scientific truth is method. Science cannot ex-ist without it. Now our juridical writers altogetherneglect it. For although the law is a collection ofprinciples, they treat of it, not in reference to princi-ples, - the abstract, - but in reference to things, -the concrete. They neither descend from general toparticular, the ordinary mode of imparting scientificinformation, nor ascend from particulars to generals,the ordinary method of discovering truth. This isthe more remarkable, inasmuch as the science of the

INTRODUCTION.

law has been not inaptly termed one of the exactsciences. The geometric or demonstrative methodhas been applied with remarkable success to thesolution of questions of law. And that it deservesto rank as a science almost in the same class withgeometry can easily be made apparent. Its terms arefree from ambiguity, its first principles simple andobvious, the subjects with which it is conversant arewholly independent of things in actual visible ex-istence, and are capable of being accurately defined.Their properties and relations are immutable. Inthese respects both sciences have the same qualities.Our surprise is not lessened by the consideration, that,whilst other moral sciences have been discussed inevery variety of method, it should have been altogeth-er neglected in a science which of all others is themost intimately acquainted with human relations, -by which man lives, moves, and has his being in socie-ty, - which makes his home a temple and a fortress,that no impious hand can touch with impunity, nodaring adversary assail with success. But its neglectis a fact now, and was when Bacon pronouncedthis judgment upon his age: " Qui de legibus scrip-serunt omnes, vel tanquam philosophi, vel tanquamjurisconsulti argumentum illud tractaverunt. At-que philosophi proponunt multa dictu pulchra, sedab usu remota. Jurisconsulti autemn ..... placitisobnoxii et addicti ..... tanquam e vinculis sermo-cinantur."

It is in this respect that the Roman has so greatadvantage over the Common Law. The universal er-ror of our juridical writers is in supposing that, evenin those countries over which the Civil Law presides,it is valued chiefly for its doctrines. The reverse

INTRODUCTION.

is the truth. "When," says Professor Mayer, on thesubject of the use of the Civil Law in Germany, " itsprovisions shall have ceased to have the force of law,its study will produce greater profit, and the peculiarmethod employed by the so-called jurists in treatingthe law will be better estimated and turned to practi-cal account." Again he says, "It ought ever to beremembered, that, familiar as they (the.Roman law-yers) were with all the culture of their times, theyknew the law not as an aggregate of rules, but in itsscientific unity, such as it was disclosed to them by itsown history and the history of their nation. Thelegal literature of no other people can show a casuis-try so thoroughly spiritual, where the matter of factonly seems designed to corporealize and exhibit thespirit. Hence, there is no better training of prac-titioners than the study of the Pandects."

PART II.

JURISPRUDENCE is the knowledge of laws, theirreasons, and their sources. Knowledge of laws andtheir sources constitutes the history of the law.Knowledge of laws and their reasons constitutes thephilosophy of law. Without some tincture of thisphilosophy none can be said to understand the law;"for though a man can tell the law, yet, if he knownot the reason thereof, he shall soon forget his super-ficial knowledge." To discern these reasons, it is in.dispensable to study the history of the law. Thelatter furnishes forth the facts, and in them philoso-

1 *

INTRODUCTION.

phy searches for their reasons. Philosophy does notcreate, it discovers the true relations of things.

The relation of man to man is expressed in theyouth of nations in customs or usages, which em-body the national ideas of justice, and in that wayexpress the character of the people. For no customcan prevail in a nation which is repugnant to its sen-timents or sense of justice. Manners are the lawof a people at this stage of its progress. Theseare, then, parcel of the national mind; its moralrule, as well as the arbiter of public and privateright. Morally they are the people. The Athe-nians uttered a universal truth, when, abandoningtheir territory to its invaders, they said that theircountry was their customs, and these they carriedwith them in their ships. Nations in all ageshave sent forth colonies which voluntarily separatedthemselves from their places of nativity, but neverfrom their customs. In fact, they cannot; it is amoral impossibility. They cannot separate them-selves from themselves. Hence colonies have alwaystransported their native customs to their foreignhomes, and have preserved them so far as they could,consistent with the altered relations of external affairs.In regard to the Germans of the medimval ages, thisis equally true. An erroneous inference from thisgeneral truth has, however, been made. Their con-quests gave them large territories, which were parti-tioned between themselves and the conquered people.Each man thus became a landlord. But this wasaltogether a new relation for them, and to which theircustoms had no reference; for before they crossedthe Rhine, private property in land was absolutelyand totally unknown to them. Their customs con-

INTRODUCTION.

cerned their rights as men, life, liberty, and propertyin chattels; and even of these they possessed littlemore than their wagons, cattle, and arms. Untilthey had conquered the Roman world, they knewnothing of conveyances, much less of devises of lands,- a refinement upon the right of alienation. Nul-lur testamentum, says Tacitus, - their customs wereunwritten, - leges memoria sola et usu tenebant. Af-ter their conquests, they became subject voluntarilyto the influence of the laws, and gave a ready obe-dience to the Christian pontificate of Rome. Theirnational characteristics disappeared, in a great meas-ure, in a new civilization; their customs were written,and in the language, and discolored with the ideas,of the conquered. So difficult is it to distinguisheven in the Salic and Ripuarian codes the nativefrom the Roman element, that this task is still ad-mitted by eminent German scholars to be as yet un-accomplished.

The fact that the Germans before their invasionhad no law of real property, is of great consequencein our judicial history. Savigny has demonstratedthat the codes of all the tribes consisted, in a greatmeasure, of Roman law, and it has always been ad-mitted that these were interpreted with the aid ofthat law. Hence the universal prevalence on theContinent of the Civil Law. The Norman customs,however, did not undergo so great modification.For, being the last of the invading tribes, bringingwith them their native customs fresh and pure, theycould not at once become Gallo-Romans. Nor, indeed,have they yet become so thoroughly imbued with theprinciples of the Civil Law as the Franks and Bur-gundians. The Anglo-Normans, insulated, and almost

INTRODUCTION.

from the time of the conquest of England hostile tothe Gallo-Romans, have of course been less deeplyimpressed with the mixed law of the Continent. Butas the Normans had originally no native custom con-cerning land, they too, necessarily, when they becameproprietors, adopted the only law of real estate ofwhich they had any knowledge, - the mixed Gallo-Roman law.

The change from oral and traditionary to writtenlaws is the beginning of legislation. Legislation isnot the law, but the expression of the law antece-dently existing. The thought was already in the mindand heart of the people. This is a truth in thejuridical history of the world. Legislation cannot beother than the authoritative utterance of the thoughtof a people. The cause of this change from traditionto legislation has always been political. Thus theTwelve Tables were compiled to remedy the diversitybetween races, - the Patrician and Plebeian. "Thestate of affairs," says Niebuhr,* "was exactly likethat which led to the framing of the statutes ofmodern Italy. When the German conquerors andthe Romans had grown up together into one nation,with a common language and manners, the universaltendency of circumstances was to mould the twoclasses into civil communities with new rights, inwhich those previously separate should be blended."Hence these mixed codes of Roman law and nationalcustoms. A similar condition of affairs led Alfredand Edward the Confessor to promulgate their codes.These historical instances prove that the change fromtradition to legislation was produced, not only by a

Rome, Vol. II. p. 210.

INTRODUCTION.

political, but by the same political cause. And eachof these codes, except that of Edward, became, forthe people subject to it, .fons omnis publici, privati-que juris.

The diversity of races, which the laws of Edwardwere intended to obliterate, arose in a new form afterthe conquest. William consented that the nativesshould be governed by their own laws; but at thesame time published his code for the government ofhis followers. This state of affairs tended necessarilyto perpetuate the diversity, by establishing two co-ordinate systems of laws; but he gave the administra-tion of both to the Normans. Interest, contempt fora conquered race, ignorance of the native laws, anda knowledge of their own, combined to render thejudges utterly regardless of the native laws. A longperiod elapsed before the races had blended; but thetraces of the Anglo-Saxon upon the law were fewand slight. Their customs perished with the peoplewho cherished them, as congenial to their mannersand constant memorials of their lost freedom Andwhilst the native was becoming obsolete, a foreigncode was being substituted by judicial legislation.

The next step in the juridical history of moderntimes is the promulgation of capitularies or statutesmade by the sovereign alone. None of these arenow referred to in England as authority, except Mag-na Charta of Henry the Third (A. D. 1225), twohundred years after the conquest. The antecedentcapitularies are generally declaratory, and where re-medial or amending, they have been directed to thecorrection of abuses in the administration of thefits corome. It is apprehended that they have hadlittle influence in the formation of the Common Law.

INTRODUCTION.

Although Bracton lived in the reign of Henry theThird, and wrote within a few years after MagnaCharta was granted, he mentions it only passingly,and without attaching to it much importance. In-deed, until the Revolution, when Somers and his co-adjutors sought justification of their ideas of popularrights in the law, Magna Charta was almost forgot-ten. And historically it is not true that the cele-brated twenty-ninth chapter had for its purpose theextension of the power of the democratic element inthe government. It was intended solely to confirmthe owners of lands, liber homo, in the enjoyment ofsuch rights as they had beforetime possessed. Thisstatute, says Coke, was but a restitution of the Com-mon Law, and his remark concurs with the truth ofhistory. The English Revolution did, however, extendthe basis of political organization, and increase theinfluence of the popular element. But it seems nat-ural to the lawyer to discern in the past the exactprototype of the present, and it is certainly commonto deny that the improvement of the law, public andprivate, is a change of the antecedent law. Develop-ment is with many not progress, and such desire thelaw to be immutable.

The English Revolution made no change in the lawof private property. In like manner, the AmericanRevolution affected only the public law. The te-nacity with which every branch of the great Ger-manic race maintains its primitive customs hasalways been remarked. The Normans and their de-scendants have adhered faithfully to their customs inrelation to lands, which they adopted in the MiddleAges. Their law of real estate is altogether custom-ary. No code nor statute establishes our system of

INTRODUCTION.

real estate. Yet in the lapse of nine hundred years,diversified by every incident that can befall a people inprosperous or adverse fortune, - advancing from com-parative barbarism to the height of civilization, -

changing dynasties, - pendulating from the tyrannyof the Tudors to the anarchy of the Barebones Par-liament, indoctissimum genus indoctissimorun homi-num, - not one principle of the law of real estate hasbeen altered. The Justinian of the English law re-stored the customary law by the statute de donis, andthe tyrannical Henry the Eighth attempted to lopoff that foreign graft in the Common Law, uses.Legislation, with few exceptions, has been confined tothe accidental, and has not touched the essentials ofthe Common Law. Thus, the statute of frauds merelyestablishes the kind of evidence necessary to provecontracts in certain cases. The statute of wills ex-tends the special customary law to the whole realm.The Habeas Corpus act gave another remedy forillegal imprisonment. Nor has legislation altered ina single particular conveyances at Common Law, buthas increased indirectly their number. So the familyrelations remain, with their incidents, as they were inthe earliest periods.

This review shows that the Common Law presentsfor our investigation a continuity of doctrine, whichbinds the present to the past, - a chain of rules un-broken by revolutions, not blurred by codification, -

in short, a body of original facts. Without the im-mutability of the Jewish law, it has been stable,amidst tile changes of society. It has participatedin great revolutions, without being a passing incidentin the life of the nation. It is not an episode in the

12 INTRODUCTION.

life, it is the life itself of the nation. It is stable,because its principles are founded upon truth; itis capable of amelioration, because that is of thenature of humanity. It must, then, have a philos-ophy.

THE

THEORY OF THE COMMON LAW.

CHAPTER I.

THE STATE.

THE State is a person, and possesses as its prop-erty one territory. As this one civil person con-sists of all the citizens, so its property consists of allthe individual property of the citizens. It is unapersona, unicun patrimonium. This unity of theperson and property of the state is expressed by theCommon Law in the maxim, that all lands were orig-inally granted out by the sovereign, and are there-fore holden, either mediately or immediately, in fee.The sovereign reserved the dominium and ultimateproperty in the lands, and the grantee acquired onlythe use and profits.* Thus the right to the soil wasseparated from the right to the use and profits. Inapprehension of law, the state holds the soil of thewhole territory as one estate. This idea was notpeculiar to the feudal law.t It prevailed univer-

2 B1. Com. 51; 1 Co. Litt. 915.

t The generality of the writers on the feudal law seem to consider thisfiction, the unity of the state, as the characteristic of that law. Eventhe learned Vico, whose merits as a philosophical historian are univer-

TIHE STATE.

sally on the Continent, among the German tribes

who conquered the Gallo-Roman provinces. Cwsarstates, that before their irruption into Gaul they hadno private estates in land; "neque quisquam agrimodum certum, aut fines proprios." * The territoryoccupied by them belonged to the tribe, and was re-partitioned annually to prevent even local attach-ments. In like manner Rome held the sovereigntyover her conquered provinces. The possessors or ten-ants, whether Roman citizens or subjects, held theirlands in bonis, as usufructs, and without that partici-pation in political rights which enabled the citizen tohold lands within the proper territory of the city, exjure qnuiritium. The latter, known as one of the resmanci)i, corresponded to the legal estate of the Com-mon Law, and was in the same sense distinguishedfrom the usufruct. Thus Cicero applies the distinc-tion, " ergo fructus est tuus, mancipium illius." tLucretius more eloquently and accurately says:

" Vita wancipio nulli datur, omnibus usui."

This idea of the unity of the territory, being com-mon both to the Germans and Romans, was adoptedas the basis of the treaties between them previousto the fifth century. Thus, in A. 1). 268, the Franksreceived lands upon the banks of the Rhine, on con-dition of defending that frontier from barbarian inva-

sally acktowledged, has fallen into this error, and, as a consequence, his

speculations, always surprising for their novelty and very frequently pro-found, do not uncover the features of that system. Ile considers every

people as holding its territory in fee of the Great Ruler of the world.That is not more true of feudal England than of Rome. Yet the latter hadno knowledge of the tudal law ; it arose many centuries after its territory

had become the spoil of nations. See Vico, Philosophy of History, Vol. 1I.ell. 5.

* Comm. 6. 2 2. t De Div. 7. 29. 1 3. 98-1.

THE STATE.

sion and of serving as auxiliaries in the Roman army.Military service was the only rent that, from their

previous migratory and predatory habits, they were

capable of paying for the use of the lands. On the

eastern frontier the same course was adopted; indeed,the Empire, assailed at every point by barbarous tribes,was compelled to employ some of them in its defence.Such also was the tenure of the Salic territory inthe early period of the Middle Ages, and for that rea-son transmissible only to male heirs. Therefore,whilst those tribes in amity with Rome had the useand profits of their lands, the sovereignty termeddominium populi Ronani by Gaius and imperium byJustinian -indicative of the different forms of gov-ernment - belonged to the civitas or state.

It would not be difficult to collect from history nu-merous other instances of the prevalence of this idea.Indeed, so generally has it been adopted as the foun-dation of political and territorial organization, that itis one of the points of similarity between the generaloutlines of theology and jurisprudence.* Hence, too,the jurisconsults of antiquity -theologians, jurists,and philosophers at once - comprehended under theword Justice all the relations of man to man and toGod. And therefore they defined jurisprudence to bedivinarum atque humanarum rerum notitia, justi atqueibyusti scientia.

This idea being the basis of the political and ter-ritorial organization of the whole state, its effectsmust necessarily be discoverable, in a greater or lessdegree, in every part of the legal system of that state.

* 4 Leibnitz, 185, Duten's ed. Selden, De Jure, &c.; Collatio. R. &

M. leg.

THE STATE.

It is not possible that any people should live undera public law which is antagonistical to the privatelaw. The reasons are too palpable to require anyelucidation. Therefore, in treating of the privatelaw, altogether to discard consideration of the public,is to neglect that element by which the private lawexists. For instance, trial by jury in private causeswe value highly; but no one could imagine that itwould be valuable in a despotism. The form mightsurvive, but not the life, and it would probably bemerely an instrument of oppression. We shall, how-ever, no further notice the public law than is abso-lutely necessary for the exposition of the private. Itwill be found that in proportion as the state tendstowards unity or centralization, as it is now generallytermed, so are the people free or not; and in thesame proportion is the security of their rights ofproperty.

In the Common Law, as will hereafter be shown,the idea of the unity of person and of property isapplied practically, and with controlling power, toevery relation that can arise between the grantor andthe grantee of lands, - considered either as personsalone, or as persons in connection with property.Whatever may be the quantity or quality of an es-tate, - into what number soever of parts it may bedivided, - however numerous may be the tenants,their relations depend upon this principle. The) ex-ist, as Bracton says,* per juris unitatem. This unityis termed by Blackstone "a fiction of tenure," but,like all other legal facts, it will be found potential inthe law, rigorous, and peremptory, admitting no con-

Fol. 66, 76.

CIVIL PERSON.

tradiction and suffering no modification. It is thefoundation, not only of the public political and terri-torial law, but of private property, of status, of familyrights, of courts and their rules of procedure; inshort, an exposition of it, as applied to the law ofEngland, is the philosophy of the Common Law.

CHAPTER II.

CIVIL PERSON.

THE state is represented in the person of its chiefmagistrate, who is at the same time a member of it.Thus the king cr president possesses two kinds ofrights, a university of rights as a corporation, andindividual rights as a man. As the former becomemore and more confounded with the latter, so govern-ment advances towards some form of monarchy. Abishop also is a sole corporation, but the man holdingthe office has also his individual rights. The wordperson neither according to its accurate meaning norin law is identical with man. A man may possess atthe same time different classes of rights. On theother hand, two or more men may form only one legalperson, and have one estate, as partners or corpora-tors. Upon this difference of rights between theperson and the man, the individual and the partner,corporator, tenant in common, and joint tenant, de-pends the whole law of these several classes. Thesame person has perfect power of alienation, offorming contracts, of disposing by last will and testa-

2 *

CIVIL PERSON.

ment of his individual estate, but not of the corpo-rate, nor of his own share in it, unless such power beexpressed or implied in the contract by which theuniversity of rights and duties is created. The samedistinction divides all public from private property,and distinguishes the cases in which the corporationor civil person may sue from those in which the in-dividual alone can be the party ; - although there areinstances in which the injury complained of may, inreference to the difference of character, be such as toauthorize the suit to be instituted either by the civilperson or the individual, or by both. Thus, violenceto the person may be punished either as a wrong tothe state or to the individual.

The true meaning of the word person is also ex-emplified in the matter of contracts. It is said, gen-erally, that all persons may contract; but that is nottrue in the sense that all human beings may con-tract. Thus, a married woman, an infant, a lunatic,cannot contract. Again, a slave of mature age, soundintellect, with the consent of his master, cannot makea contract binding on himself, although as an agenthe may bind his master. These matters are impor-tant only as they serve clearly to show that the civilperson may have rights distinct from those which hepossesses as an individual ;- and that his rights orduties as an individual may consequently become op-posed to his rights and duties as a civil person. Thus,a partnership of three persons may own, for example,a moiety of a ship, and one of them the other moiety.In case of a difference between them as to its use, therights of the one as a partner, and his right as anindividual owner of another moiety, are directly op-posed. In order, therefore, in any case, to perceive

CIVIL PERSON.

the application of a rule of law, it must be consideredwhether the person or the individual, or both, is thepossessor of the right. For it may be asserted asabsolutely true, that the rights of the man are notrecognized by that law which is termed the municipal.It recognizes them only as they grow out of, or areconsistent with, his character as a civil person. Inother words, this is the distinction between the Com-mon Law and the law of nature. Nor is this a fan-ciful distinction, inasmuch as the rudest tribes, aswell as the most civilized nations, have always dis-tinguished between the rights and duties of theirmembers, and of those who were not members of thebody politic. Even after the philosophical jurists ofantiquity had polished and improved the jurispru-dence of aristocratic republican Rome by the philoso-phy of the Portico, Cicero, statesman, philosopher,and jurisconsult, exclaims with indignation againstthe confusion of rights of person that the age wit-nessed: " In urbem nostrum est infusa peregrinitas;nunc vero etiam braccatis et transalpinis nationibusut nullum veteris leporis vestigium appareat."

The Common Law, as well as the Civil, recognizesas a person an unborn child, when it concerns its in-terests either as to life or property. " Qui in uteroest perinde ac si in rebus humanis esset, custoditur,quotiens de commodis ipsius partus queeritur." Andboth systems provide the same remedies to protect thechild and those with whom its birth may interfere.In case of a limitation to the child of which a womanis now pregnant, if twins should be born, the Com-mon Law gives the estate to the first-born; by our

Epist. ad Fain. 9. 15.

CIVIL PERSON.

law, they would take moieties. Now, as these rightsare acquired before the birth of the child or children,there is a double fiction ; not only in considering theunborn as born, but in distinguishing under the Com-mon Law the eldest from the youngest born. Whilst,therefore, the law regards the unborn as born, yet, totransmit the estate, he must be born as a man, aliveand capable of living.

The law does not presume the life or death of anindividual; when his existence has been established,his death also must be proved. * But the birth of anindividual and the commencement of his character asa person do not necessarily concur. Thus, an alienof any age is not a person, in relation to a contractconcerning lands, nor in any case is an infant ; so awoman marrying before she attains her legal maturi-ty may die of old age without having become a per-son. On the other hand, a person may suffer civildeath before physical death; totally, where he be-comes a monk; partially, as a penalty for the commis-sion of an infamous crime; and perpetually or tempo-rarily, as in case of outlawry.

* Where a person has not been heard of for seven years, and under cir-cumstances which contradict the probability of his being alive, a court mayconsider this sufficient proof of death (Stark. Ev. 4 pl. 457). The pre-sumptions which arise in such cases do not concern the death of the person.,but the time of his death, as where several die by one shipwreck or othercasualty. On this point the rules are, - 1st. In case of parents and children,that children below the age of puberty died before, and adult children after,their parents. 2d. Persons not being parents and children, and the rightsof one being dependent upon the previous death of the other, this precedentcondition must be proved. 3d. If a grant is to be delleated by the act of thegramntor, as in case of a don anio inter virun tt uxorem, or a donatio ,ortiscausa, the donor is presumed, in the absence of testimony, to have diedfirst. (See Pothier, Obligations, by Evans, Vol. II. p. 300.)

REMAINDERS.

CHAPTER III.

REMAINDERS.

TIHE unity of estates is exhibited in its simplest

form in the fee simple. But in order that its influ-ence in the more subtile portions of the law may bemade apparent, the doctrine of vested remainders willbe considered. " It is a general rule," says Mr.Fearne, " that every remainder must vest, either dur-ing the particular estate, or else at the very momentof its determination. So that, if a lease be made to Afor life, and after the death of A, and one day after,the land shall remain to B, this remainder to B is void."Why does the law inexorably demand that the re-mainders shall vest at the very instant of the deterini-nation of the preceding estate ! Mr. Fearne statesthat "this rule was founded upon feudal principles,and was intended to avoid the inconveniences whichmight arise by admitting an interval when thereshould be no tenant of the freehold to do the servicesof the land, or answer to the stranger's praecipe, aswell as to preserve an uninterrupted connection be-tween the particular estate and the remainder, which,in the consideration of the law, are but several parts ofone whole estate." The feudal principles to whichN'[r. Fearne refers seem to be those intended to pre-vent the inconveniences to the lord and the stranger,which would follow from the want of a tenant of thefi-eehold. The explanation might be sufficient, if ev-ery remainder necessarily consumed the whole estateremaining after the determination of the preceding

REMAINDERS.

estate. Were there no reverter, reversion, or escheat,then, perhaps, the lord might suffer inconvenience.Moreover, when there was no tenant of the freeholdable to render service to the lord, - an infant, for ex-ample, - the lord might enter and enjoy the profitsof the land. The infant was in wardship. If therewas no legal tenant, the land reverted to the donor.And in either case, the stranger had a person holdingin his own right or in autre droit, to answer to hisprecipe. Nor is the necessity of an uninterruptedconnection between the particular estate and the re-mainder a sufficient explanation. It involves, in fiact,a petitio principii. Why was it necessary that thisconnection should be uninterrupted, even for a mo-ment? Upon what principle does the law declarethat a remainder is void, if there be, as in the caseabove cited, the interval of a day between the partic-ular estate and the remainder? It is manifest thatthe reason of the rule has no relation to the length ofthe interval, -a moment is as destructive as a year.In the former case, - a moment, - the want of atenant could not impose any inconvenience, eitherupon the lord or a stranger; yet it defeats the re-mainder as certainly as the interval of a year. Thelength of the interval was unimportant, and the in-convenience, therefore, was not the reason of the rule.We apprehend that the rule is founded upon reasonsvery different from those stated by Mr. Fearne.

Without disturbing the learned dust that has in-crusted the writings of those system-builders whohave maintained that fees were originally held at thewill of the lord, and rose by degrees, passing throughthe stages of leases for years and for life, to the dig-nity of inheritances, it is sufficient for our purposes

REMAINDERS.

to fix ourselves upon that point of timc when allagree that estates for life had become general. Thetenant for life was bound to render to the lord certaincustomary services, and any others that might be spe-cially agreed upon between them. On his part, thelord was bound to protect the tenant in the enjoy-ment of the land, and, in case he was expelled byparamount title, to provide him with another feud.And, as the connection between the lord and the vas-sal was personal, the latter could not substitute avassal in his own place, nor the former a lord, with-out mutual consent. At the termination of the lifeestate the land reverted to the lord, again to begranted as a feud. It is probable that various mo-tives conspired to induce the lord to grant the landto two or more persons, in succession, for life. Letus suppose the case of a limitation to A for life, andfrom and after his death to B for life. By the com-mon law, livery of scizin was necessary to give titleto a freehold interest in land. When, therefore, thetenant for life took livery of seizin, the remainder-man acquired an inchoate right to the remainder.This right vested in the remainder-man as soon as theparticular estate commenced, but it did not authorizehim to enter into the possession of the land, even atthe death of the tenant for life, without the consentof the lord. " Sciendum est fwtidum sine investitura,nullo modo constitui posse." * Now, if the tenant forlife forfeited his estate, - and only by forfeiture couldlie lose it, -it necessarily reverted to the lord: becausethe remainder-man, not having livery of scizin, couldnot enter, to exclude the lord, - and livery could notbe granted him, as remainder-man, under the original

Liber Fcudorum, tit. 25 ; 1 iccvcs, 154.

REMAINDERS.

agreement, for the tenant for life was not dead. Theresumption of the land by the lord was not the acqui-sition of a new estate, but his restoration to his orig-inal estate: for the tenure, or contract of holding,was that the lord might reenter for breach of anycondition; being restored to his old estate, the re-mainder, necessarily, no longer existed. It ceasedwith the estate upon which it depended. The sameprinciple is found in many other cases, and appliedwith even greater rigor. Thus, if a man seized ofan estate in fee marries, and afterwards the conditionis broken, and the lord enters for the breach, he willavoid the wife's title to dower.* So, entry for breachof a condition will defeat all rent-charges, statutes, andjudgments.t To prevent, therefore, the failure of theremainder, consequent upon a reverter to the lord ofhis old estate, the tenancy for life must, in eceiy case,continue until the moment when, by the law of thecontract, the remainder-man is entitled to demandlivery of seizin.

Tile rule, therefore, is grounded upon the plainestprinciples of justice. A remainder-man was, in factand in law, a party with the tenant for life in a con-tract with the lord. The tenant covenanted to per-form certain obligations in presenti ; the remainder-man in futuro; and the lord contracted with bothin presenti. And it is clear that, by the contract, therights of the remainder-man were dependent uponthe fidelity of his coobligor, the tenant,. to hisobligations. This was the contract. It was a condi-tion annexed to the contract, - a part of the con-tract, -that the life estate should be forfeited forcertain causes. The contract, in the language of the

I Roll. Abr. 474. t I Rep. 147.

FEE.

civilians, contained a clause of nullity. We haveseen, from Rolle and Coke, that even dower wasavoided by a violation of the condition. So, by theCivil Law, if a mortgage was given upon an estateheld upon condition, and the covenant or contract bywhich the estate was held was dissolved by the eventof the condition, the mortgage would be defeated.*This is in accordance with the general rule, Resolutojure concedentis, resolvitur jus concessum.t Thus, byboth systems, the original proprietor resumed hisestate, free from all encumbrances. As it is said bythe common lawyers, he was in of his old estate.

The remainder-man was therefore a party with thetenant in a joint contract with the lord. Being ajoint contract, and not several and independent, theremainder necessarily commences at the time of thecreation of the particular estate; or, in other words, aremainder cannot be created to commence in futuro.Hence, too, the interests of the tenant and remainder-man constitute but one estate in judgment of law.These are all the rules of the doctrine of vested re-mainders.

CHAPTER IV.

FEE.

THE principle of unity having been shown to existwith controlling power, not only over the whole ter-ritory, but every part of it, and also as entering as a

* Domat, Lib. 1, tit. 1, § 6. t Dig. 8. 6, fr. 11, s. i.

3

FEE.

substantive rule into the more complex portions ofthe law, its application is further to be considered.It is obvious that the maxim, that all lands areoriginally holden in fee, has two elements, juris-diction and property, - the dominion of the state orits sovereignty over the territory. "These, jurisdic-tion and property, are," says Grotius, "in referenceto nations, usually acquired by one act." * Now thedistinctive peculiarity of the feudal law was to regardevery lord as a sovereign, and every feud as a :domain,and, reversing what is in modern times consideredthe natural order of things, it attributed jurisdictionto the lord by virtue of his possession of land. M.Guizot t marks this singular fact as the constituentelement of that system, - the fusion of sovereigntyand property; that is, the attribution to the proprietorof the soil, over its inhabitants, of all those rightswhich constitute what we now call sovereignty, andwhich at this time are possessed only by the public.Again, Dr. Arnold says,+ the law of property, of realproperty especially, and a knowledge of all the cir-cumstances of its tenure and divisions, would throwlight upon more than the physical condition of apeople; it would furnish the key to some of themain principles prevalent in their society. For in-stance, the feudal notion that property in land confersjurisdiction, and the derivation of property eitherfrom the owner's own sword, or from the gift of thestronger chief whose sword he had aided, not from aregular assignment of society, has more deeply affect-ed the political and social state of the modern na-tions of Europe. At Rome, as elsewhere among thefree governments of the ancient world, property was

• De Jure, Lib. 2, c. 3. t Hist. Civ. France, Vol. IV. p. 38.: His. Rome, ch. 14.

FEE.

derived from political rights, rather than politicalrights from property. And we may add, that this istrue of the United States. This fusion of jurisdic-tion and property in lands was the peculiarity Of thefeudal system. The sovereign granted out the useand profits of the lands to his vassals, but retainedsovereignty over them. By virtue of it, he imposedtaxes, coined money, made war, sat as a judge inAula Regis, surrounded with his vassals as a council.So, in like manner, every lord, upon receiving investi-ture of a fee from his superior, immediately acquired,by attribution of law, the rights of sovereignty overhis vassals, and sat as a judge in his baronial court,surrounded by his vassals. Thus we read in LiberFeudorum: " ,, Si inter duos vassalos de feudo sit con-troversia, domini sit cognitio et per eum controversiaterminetur." The greater barons made war, coinedmoney, imposed taxes, and, in short, exercised all therights of a sovereign'; the smaller were restrained,by their want of the necessary physical power, fromasserting these rights in their plenitude. This wasthe only difference between the greatest and the leastof the barons in the feudal age.t

The sovereignty exercised by a baron of any rankover his vassals was twofold; first, by means of hiscourt, and secondly, directly and without its interven-tion. But in the course of time, as the turbulenceof the state subsided, many instances of the latterclass were enforced only by means of the court. Forinstance; the inquest at the suit of the crown to

Tit. 1, p. 18.t Baron in the feudal age did not mean that the person had a title of

honor. He was strictly a landlord. Coke uses the word in a wider sense,as " feoffment to baron and feme," meaning man and wife. Homo wasa vassal ; liege, ligatus, bound to a lord.

FEE.

establish an escheat from want of heirs to the lastperson seized, has arisen since the feudal systems be-gan to decline. The fact was always notorious, andthe land was therefore immediately seized. An in-stance of this notoriety being sufficient, without fur-ther proof, will be found in the case of Dr. Storie,*who was hanged for treason, being notoriously anative. The king, upon the commission of treasonby rebellion, or denial of his feudal supremacy, didnot, under the ancient Common Law, wait upon thepedetentous pace of the law, but instantly seized thelands of the traitor. The inferior lord, when hisvassal denied his tenure, as by doing homage to an-other lord or attempting to alien his feud, also in-stantly entered and resumed his old estate. In bothcases, - of the king and the lord, -- the seizure wasjustified upon the same ground, that the tenant orvassal had denied his allegiance, and each exercisedhis right of entry. The right of entry is therefore aportion of the ancient jurisdiction or sovereignty ofthe owner of the fee.

Furthermore, for the purpose of distinguishingclearly sovereignty or jurisdiction from pruperty, wewill analyze a fee simple. Littleton tells us, that atenant in fee simple is he that hath the lands andtenements to him and his heirs for ever. But neitherhe, nor any other of our juridical writers, has givenan account of a fee without any adjective, - simple,conditional, tail, &c. It is not peculiar to lands, andmay be of titles of honor, of offices, incorporeal he-reditaments, and also of that species of personalproperty known as annuities. It is not the use andprofits of land, nor necessarily annexed to them; for

* Dyer, fo. 300, b. pl. 38.

FEE.

if lands be limited to A, and the heirs of his body,the fee continues in the donor, but the use and profitsare the inheritance of A. It is not assignable nordivisible, nor can we conceive of its partition intoshares.* Thus two tenants in common of an inherit-ance have one fee, but undivided moieties of the useand profits, but neither nor both can transfer the fee.When they transfer the use and profits with the con-sent of the lord, the law attributes to the donee thesovereignty or fee. Its existence is shown in theright of entry. As the king reserved sovereignty orjurisdiction, or, more properly, as it did not pass fromhim, so does the donor still continue to possess it,whenever he creates an estate of inheritance less thansimple. Whenever the tenant violates his tenure, bytreason or by alienation of his life estate in fee, thedonor, whether king or tenant in fee simple, may ex-ercise his jurisdiction and resume his estate.

The manifest object of attributing to the lord thisright of entry, or jurisdiction, was to enforce thefaithful performance by the tenant of the duties in-

* By the 32 lien. 8, c. 34, the grantee of a reversion may take advan-tage, in certain cases, of a condition broken ; that is, a right of entry wasgiven to him. By the Common Law, only the donor and his heirs couldenter. Coke states a number of conscquces of this change of the Com-mon Law, but in language which, though intelligible, is incorrect. Thus,that " a condition may be divided by act of law or by the wrong of thelessee." Here he clearly means that a right of entry for breach of the con-dition is given to each grantee, where by act of law the land which wassubject to one condition passes to several grantees, or where in such caseone lessee of a part has violated his contract, and the other lessee has not.The right of entry, a condition, a power, arc merely legal entities, ofwhich we cannot conceive a partition ; nor can it pass from one to another,as a piece of land may. But a right of entry may be delegated, that is,the party having it may appoint another to make the entry. Or, where theentry is made, lie may afterwards approve and adopt it. Spencer's case,3 Rep. 16 ; 1 Smith's Leading Cases, 75; 2 Strange, 1128. " Coke, itmust be confessed, was sadly negligent of style," says Lord Campbell.

34

FEE.

cumbent upon him. As it is the power of punishingwrong, it is also necessarily the power of protectingright. Both these objects are combined in the officeof trustees to preserve contingent remainders anduses. They have the right of entry upon the par-ticular estate where the tenant attempts to destroythe contingent interests, and by their entry to pre-serve them. It is apparent, therefore, that the rightof entry or fee is the last remnant of the jurisdic-tion that the feudal law attributed to property. Ju-risdiction, fee, right of entry, is the ligament whichbinds the whole territory of the state and the severalparts of it together in unity.

That the word fee originally signified only the prop-erty in lands is certain; the jurisdiction exercisedby the lord was termed his sovereignty. Thus Coketerms the abbot of a monastery the sovereign of thehouse.* But, in the progress of time, the word sov-ereign came to be applied exclusively to the king,and jurisdiction ceased to be distinguished in lan-guage from the fee. Thus fee was made to compre-hend jurisdiction, as well as the property. This con-fusion continues to the present time, and we use thatword, in the present instance, for want of anotherfamiliar to us, and expressive of the attribute ofproperty.t

V Vol. . p. 493.

t In the feudal age, after the terms of the contract between the lordand the vassal were agreed upon, the latter was invested with seizin bylivery, and then, as we have seen, the law attributed jurisdiction, fee, or sov-ereignty. The latter, sovereignty, first ceased to be prominent; then, asthe feudal system declined, livery or investiture became a mere form, andnow even that form is generally not observed, and in many of the States isaltogether abolished. It is not surprising, therefore, that the remnant ofsovereignty and of livery which still exists in the law should have beenneglected by modern writers. In a subsequent chapter, we shall have oc-casion to show the very important consequences of seizin, even at the pres-ent time, in the doctrine of descent.

SCINTILLA JURIS.

CHAPTER V.

SCINTILLA JURIS.

FEE or sovereignty has no element of property, al-though by the feudal law it is the attribute of prop-erty. It exists only in legal apprehension, and is nei-ther assignable, devisable, nor divisible. Now it isbelieved that the neglect to distinguish between thefee used in the sense of sovereignty, and fee asmeaning property, has led both writers and judgesinto grave errors. For example, in Chudleigh's case,the limitation was to the use of A for life, remainderto his sons successively in tail. Before A had a son,the feoffees enfeoffed him in fee simple. The courtheld, that, by virtue of the statute of uses, all the sei-zin, estate, and possession of the feoffees were in thecestui que use in esse ; and that a possibility of seizincontinued in the trustees, to support the uses as theyshould arise. This is the much vexed question of thescintilla juris.

Mr. Fearne has shown that this doctrine is irrec-oncilable with the statute of uses. But, with theutmost deference for the opinions of that eminentlawyer, it is believed, that, however complete may behis refutation of the doctrine of the court, his ownexplanation is equally untenable. Mr. Butler statesit thus: "That by the statute the whole seizin is atonce completely divested out of the feoffees, and that,when the contingent uses become vested, -the use isexecuted in the person to whom it is limited, not inconsequence of any seizin then accruing to the feof-

SCINTILLA JURIS.

fees, but in consequence of the lands being origi-nally conveyed to them with a liability in consequenceof the statute to be attracted to the uses." The stat-ute was intended to eradicate uses, but not to preventthe creation nor to destroy contingent interests. Itspurpose was to lop off from the law those foreigngrafts, uses and trusts. The courts, to preserve thesecontingent estates, resorted to the scintilla juris. Mr.Fearne suggests "a liability to be attracted to theuses," annexed to the land.

Now it is as difficult to comprehend this "liability"as the scintilla juris ; and the latter phrase has thisadvantage, that it is used by Bracton, and the formerhas no authority for it. It is true, however, thatBracton uses it to express emphatically the entire ab-sence of right, - " nullum jus haberet nec juris scin-tillam ejiciendi."* Moreover, Mr. Fearne reversesthe rule of the law, that the land attracts the fee,and holds that the contingent use attracts the land.But the statute changed the equitable into a legalestate; it did not and could not make the contingenta vested use; much less confer upon the contingentcestui que the enjoyment of the use and profits.Until they became vested, even considering them asmerely legal, and not as equitable interests, the fee orjurisdiction continued in the feoffees, and was not as-signable by them. That jurisdiction, fee, or right ofentry was in itself sufficient to support the uses, with-out resort to the imaginary scintillajuris, which con-tradicted the statute or the liability, which has noauthority for its use. The statute, then, has its fullforce, and the seizin estate and possession are trans-

0 Lib. 4, fol. 183, c. 18.

SCINTILLA JURIS.

ferred to the cestui que use in esse. When the oth-er uses arise, they are supported by the right of en-try. The feoffment by the feoffees was therefore anugatory act. Nothing continued in them but juris-diction or right of entry, which is not assignable.Nor can the right of entry be barred by a fcoffment,*for at Common Law anciently actual livery was ne-cessary, and though subsequently, in the reign of Eliz-abeth, it was held that a feoffment by a mere wrong-doer in possession conveyed a fee, yet in the principalcase the feoffees had not possession; it was in theeldest son A. If, therefore, it be admitted that trus-tees to preserve contingent uses may bar their rightof entry, it is clear that a feoffment is not the appro-priate instrument.

That the court confounded sovereignty or fee withsomething of which seizin might be predicated, ispalpable. Whereas, the feoffees had neither scizinestate nor possession, but merely a right of entry, thatwas not assignable, and which we cannot conceive aspassing from them to the tenant. The liability whichMr. Fearne suggests as a convenient substitute for thescintilla juris, is equally incorrect. He fastens uponthe land as a kind of lien what his opponents con-ceived to be a possession, or possibility of it. In fact,the court and himself mean the same thing, but theylook at it on different sides; the court thought thefeoffees had a possibility of right to the land, hethought that the lands were subject to a liability orduty. Neither, therefore, was correct; the fcoffeeshad only a facultas, power, or right of entry, andthey needed no more to support the contingent uses.

* 4 Cruise, 287.

CONTINGENT REMAINDERS.

It was not an interest, but just the identical rightthat the state has to seize the lands of a traitor, orthat the donor and his heirs have to enter uponbreach of a condition, or resume an estate after thedeath of the last special heir, to whom it has beenlimited.

It is because the fee is jurisdiction, and not proper-ty, that a remainder cannot be created after a fee con-ditional. It cannot be divided, and therefore tenantsin common and joint tenants have only one fee;although during their cotenancy they may enjoy theuse and profits in different proportions. When theirshares are divided and are taken in severalty, the lawattributes to each its own fee or jurisdiction.

CHAPTER VI.

CONTINGENT REMAINDERS.

IT is requisite that the remainder be in the partyto whom it is limited at the time of the livery. "Thisis regularly true ; but yet it hath divers excep-tions ": * these are contingent remainders. When itis said that the remainder must be in the grantee atthe time of the livery, it is evident that nothing moreis thereby meant, than that the right to the enjoy-ment of the use and profits after the death of thetenant then begins. In the mean time they belongto the tenant of the freehold. Now, where that right

* 2 Co. Litt. 150.

CON INGOENT REMAINDERS.

is limited to an uncertain person, the rule that theright must be in the party to whom it is limited assoon as the livery is made, cannot be observed.Hence some persons, to fulfil the letter of the rulethat the remainder must pass out of the donor and bein the donee, insist that, so long as the person is uncer-tain, the fee is in abeyance. It would be sufficient torefer to Mr. Fearne for a refutation of this notion, butthat his argument implies that fee has some elementof property. Stating the proposition correctly, thatnothing remains to the donor, after he has disposed ofthe use and profits, but jurisdiction, there can be nopretence for the doctrine of abeyance.

When a lord or tenant in fee simple has created afreehold interest, with a contingent remainder over,he has divested himself in favor of the tenant of theuse and profits, and has nothing more than jurisdic-tion and the ultimate property. His fee can no morebe in abeyance than that of the state would be if itcreated a similar estate. The donor has a right ofentry to protect the contingent interest, or, if he hascreated none, to protect his reversion or reverter.It can be used only against the tenant, and notagainst the remainder-man, whether vested or con-tingent. It is for the benefit of the latter, and henceits mere existence is sufficient to support these lim-itations. From the fact that it is the duty of thetrustees to exercise the right of entry to preservecontingent remainders, springs their liability to pun-ishment for its abuse, or non-user. The duty whichthe trustees owe to the contingent remainder-man,although an uncertain person, gives that person, whenknown, a right; so that, in fact, there is between thetrustees and the remainder-man a contract. That

CONTINGENT REMAINDERS.

the uncertainty as to the person who may have theright to enforce a contract does not negative its ex-istence, is shown in many cases. Thus, where a per-son binds himself by his obligation to pay another,his heirs, executors, or administrators, £ 100, uponthe death of the obligee, he may or may not haveexecutors; and either way, before his death, it is un-certain upon whom will devolve the right to enforcethe contract. When the suit is instituted, it is notas upon a new right accruing subsequent to the deathof the obligee, but upon the original contract.

In case of a limitation to the heirs of B, it is cer-tain that, at his death, he will have heirs. Thesewould, therefore, by the terms of the limitation, takethe estate, although the heirs of B should not be inexistence at the death of B, as if he survived the firsttaker. There is nothing in the contract, or words oflimitation, to negative this view. But it is certainthat the heirs of B will not take the estate unless hedies before the tenant, and during the continuance ofthe particular estate. The remainder takes effect,provided that the condition upon which it is limitedis performed during the life estate. This rule, whichinexorably demands that the remainder should vest,at latest, eo instanti with the death of the first taker,is the public law, and no part of the contract be-tween the donor and donee. The former cannot varyit or introduce any modifications of it. The publiclaw requires that its fundamental principle, the unityof estates, should be observed.

But we allude to this subject at this time moreparticularly to notice that the vested and contingentremainders differ in this respect, that the latter aredependent upon a condition. The uncertainty of the

CON'2INGENT REMAINDERS.

vesting of the contingent remainder is because thatevent, its vesting, is suspended by a condition whichmay not happen or be performed during the contin-uance of the particular state. Mr. Fearne uses thephrase "event or condition," in his definition of acontingent remainder, and in all his rules except thethird, event. But it is evident that the definition isproperly a summing up of his rules. Moreover, itwill be seen, upon examination, that his four classescan, without prejudice to their accuracy, be stated inanother form of words, which will admit the use ofone or other of the four phrases which, according toCoke, are peculiarly expressive of conditions. Thisis noticeable only because it lays open the true ele-ments of the doctrine of contingent remainders. Thelaw of these limitations is the doctrine of conditions,controlled by the principle of the unity of estates.Thus, an estate may be limited to A for life, andfrom and ten years after his death to the heirs of B,without conflict with any rule of the doctrine of con-ditions; but such a limitation would be void, becauseit would sever the unity of the estate.*

These exceptions, contingent remainders, are ad-mitted into the law, therefore, upon intelligible prin-ciples. The feudal principle which still inhabits ourlaw requires that the interests of the tenant and re-mainder-man should be united. It would defeat thejurisdiction of the donor, if, when the tenant for-feited, the remainder-man, whom we have seen to bea joint contractor with the tenant, did not also losehis right; and this would follow if another interest,independent of the freehold, intervened between those

* 4 Reeves, 509.

CONDITIONS.

two estates. But so long as the unity of the estateis preserved, the remainder may be made to dependupon any limitation, condition, proviso, that thedonor may dictate. Ctiyus est dare, ejus est dis2ponere.The condition annexed to the remainder only ren-ders it uncertain during the previous estate. Thetenant is certain at the time of the happening of thecondition. Where the condition, however, not onlyrenders the limitation over uncertain, but also theduration of the life estate itself, it is a conditionallimitation, according to Mr. Fearne, and void at Com-mon Law.

CHAPTER VII.

CONDITIONS.

THE doctrine of contingent remainders is, as wehave seen, the application to remainders of the lawof conditions, circumscribed as to the time of theirperformance by the public law. "Conditio diceturcum quid in casum incubum qui potest tendere anutesse aut non esse confertur." * When coupled withan interest in property, as in case of a remainder,then the definition of the Civil Law is more accurate."Conditio appellatur, eventus a cujus futura et in-certa existentia, pendere obligationem aut ultimamvoluntatem, contrahentibus testatori ve placuit." tPothier defines it thus: "A condition is the casc of

0 2 Co. Litt. 3. t Regula J uris, 5 1.

CONDITIONS.

a future event which may or may not happen, and

upon which the obligation is made to depend." *

The rules of conditions are not exclusively confined

to the law, but are equally applicable to every moral

science. They constitute a part of logic, and when

applied to legal propositions, of legal logic. A con-

dition neither affirms nor denies any proposition, but

suspends it. It is the significant of doubt, rendering

the proposition or limitation to which it is annexed

uncertain. The conditions which concern contingentremainders, or other such interests, must be distin-

guished from those conditions usually termed implied,not only because the former are expressed, but be-

cause they differ materially in their natures. An im-plied condition may alter or defeat an estate, but

never creates an estate. They seem rather to be es-sential parts of a contract, - unexpressed terms of it,- than accidents. Thus, no life estate or fee con-ditional can be created without an implied condition

that the donor may enter for breach of it. Everyante-nuptial settlement implies that the conveyanceshall be void in case the marriage does not happen.Moreover, these conditions do not suspend the limita-tions of estates to which they are annexed.

The use of logic is, among other things, to deter-mine the right use of terms, and thus to point out

the abuse of them, and also to distinguish betweenterms rightly used, and the natures and propertiesof the different terms. The application of logic to

legal questions has been admirably illustrated by Mr.Fearne, in his treatise on Contingent Remainders.After defining such a limitation, and stating four

* Oblig. 1. c. 3.

CONDITIONS.

classes of contingent remainders, he proceeds to showthe true meaning of these words. In his third sec-tion, he distinguishes conditional limitations fromcontingent remainders, which Mr. Douglas had con-founded, and in the remaining part of the chapter heshows that, by abuse of terms, vested have been mis-taken for contingent remainders. In short, he showsby his criticism, that the words which were supposedto create conditions did not, and therefore that theremainders were vested. This discussion occupiesthe greater part of his treatise, and, as has been ob-served by Mr. Butler in his preface, "No work onany branch of science affords a more beautiful in-stance of analysis."

Mr. Fearne continues his logical criticism, andshows that certain words seem to imply conditions,but that these are false conditions, - not conditions.Thus, the definition of a condition requires that thecondition should render the limitation uncertain, notimpossible. Hence, if an event must happen, asdeath, the limitation is not uncertain, and thereforeis unconditional; if it cannot happen, then it is im-possible, and the limitation is unconditional. In theformer case, the limitation over is vested and valid, inthe latter the limitation is void. Again, under thehead of impossibilities, are conditions against law; itwould be an absurdity to term that a legal condition,which can be performed only by an illegal, immoral,or indecent act. The definition also requires thatthe event of the condition should render the limita-tion certain or uncertain; that the event shouldcause the limitation to take effect, or to be defeated.Therefore it cannot create or destroy a part of thelimitation. It requires that the condition should

CONDITIONS.

produce certainty or uncertainty as to that limitation.Hence it must create or defeat that limitation, notanother, and a different one. A condition is the sig-nificant of doubt, and merely an accident annexed tothe limitation; therefore, if the event is an infringe-ment of the limitation, it is inconsistent with it andcannot be annexed to it, and therefore the condition isvoid; as that upon a certain event a fee simple shallnot be alienable.

These are some of the principal rules of logic, andhave been noted with reference to the treatise onContingent Remainders. In that work the examplesand illustrations will readily be found. To attemptto epitomize it, would be to do it injustice, as it con-tains no matter superfluous to the practical lawyeror the legal speculatist.

Conditions are either precedent or subsequent.This division is founded upon a regard to the conse-quences of them, and not upon their location in thedeed, nor upon their terms. They are precedent whenthey are the beginning, and subsequent when theyare the ending, of a limitation. Yet a condition maybe at the same time both precedent and subsequent,the beginning and the end. For instance, in the caseof a conditional limitation, the same condition in ref-erence to the previous estate is subsequent and itsend, and in reference to the limitation over, it is pre-cedent and its beginning. And that the limitationover is a conditional limitation is because of the un-certainty that the condition will be performed; if thatwas certain, then it would mark the natural termina-tion of the particular estate, and the limitation overwould be a remainder.

4.

RELATION.

CHAPTER VIII.

RELATION.

ORDINARILY a contract upon condition specifies thetime at or before which the condition must be per-formed; in the absence of such specification, the lawfixes it. But in reference to contingent remaindersthe law does not leave it optional with the donor tospecify the time, but demands inexorably that thecondition be performed during the life of the tenantof the particular estate. At the moment of his death,the remainder must be capable of vesting in posses-sion; although by the contract the condition may berequired to be performed before that period. In likemanner, the heir must be capable of taking at thetime of his death, as if, being heir apparent, he be-comes civiliter mortuus, the estate will not devolveupon him. Now, the tenant of a particular estatehas one estate, and as to him the remainder-man hasone estate. Yet both, by reason of the jurisdiction ofthe donor, have as to him one estate. The relations,however, of the tenant and remainder-man towardseach other, are, as we have seen, determined by con-tract, but their relations to the donor depend uponjurisdiction. As to each other, the tenant has onlythe enjoyment of the use and profits before they passor devolve upon the remainder-man. Such, too, isthe relation of the ancestor and heir; setting asidethe consequences of the jurisdiction of the ancestor,and having regard only to his enjoyment of the useand profits, and their devolution upon the heir. Both

RELATION.

the heir and remainder-man obtain the use andprofits at the death of the party who previously en-joyed them. The seizin of the tenant and that ofthe ancestor are the seizin of the heir and remain-der-man; disseizin reduces them to a right of entry,and that being tolled to a right of action.

It is to be observed, that the right of an heir doesnot begin with the death of the ancestor. For theseizin of the ancestor, not his possession, gives seizinto the heir, and seizin was obtained at thecommence-ment of the estate. It is a rule of the Common Law,that no inheritance can vest in possession till the an-cestor is previously dead. Before that time, the per-son who is next in the line of succession is called heirapparent or heir presumptive. Heirs apparent aresuch whose right of inheritance is indefeasible, pro-vided they outlive the ancestor; heirs presumptiveare such whose right of inheritance may be defeated.*Nor is this rule of referring the right back to a timeanterior to the death of the ancestor, limited to thecase of heirs. Thus the remainder is referred backto the commencement of the particular estate. Thedonor of a fee conditional which has reverted to himby failure of issue, is in of his old right, not of a newestate. 'A wife's right to dower is referred back tothe marriage, and will prevail against a subsequentcharge imposed on the estate. Coke, after stating acase of a rent charge being displaced by the right ofdower, remarks: "In which case two notable thingsare to be observed. First, albeit the dower be by re-lation or fiction of law above the rent, yet she shallnot have her entire rent out of the residue, for a rela-

3 Cruise, 349.

RELATION.

tion or fiction of law shall never work a wrong, orcharge a third person ; but in fictione jutris, semperest equitas." These fictions, however much they maystartle the minds of those undisciplined in the reasonof the law, are legal truths, admitting no contradic-tion.

Further illustration of this fiction will be found inconveyances by Common Law and by custom ofcopyhold. The surrenders of copyholds are con-strued as deeds and conveyances at Common Law.If a copyholder surrender to the use of his will, anddevises to a stranger, and then dies, the devisee by hisadmittance takes as of the day of the surrender. Sowhere at Common Law a person, having made a willof lands, acquires afterwards other lands, and dies, nothaving republished his will, the devisee takes as ofthe time of making the will, and therefore does notobtain the lands after acquired.* So, says LordChief Baron Gilbert, in his book on Tenures, there isno rule better founded in law, reason, and conven-ience, than this, that all the several parts and ceremo-nies necessary to complete a conveyance shall betaken together as one act, and operate from the sub-stantial parts by relation. Livery related to thefeoffment, - enrolment, to the bargain and sale, -arecovery, to the deed which leads the uses; so admit-tance relates to the surrender. The retroactive effectsof grants are seen also in the case of an alien, whohas issue; that issue is not inheritable to his father,but if he be naturalized that issue may inherit. Butif one be made denizen, the issue that he hath after-wards shall be heir to him, but no issue that he had

* 5 Cruise, 575.

HEIR. - TIE RULE IN SHELLEY'S CASE.

before.* Again, "There is a great diversity as to theforfeiture of land between an attainder of felony byoutlawry upon appeal and upon an indictment; forin case of an appeal, the defendant shall forfeit nolands but such as he had at the time of the outlawrypronounced; but in case of an indictment, such as hehad at the time of the felony committed." t So that,if he had given away his lands, in the latter case theywould still be forfeitable. I

CHAPTER IX.

HEIR. -THE RULE IN SHELLEY'S CASE.

CLOSELY connected with the doctrine of remaindersis the rule in Shelley's case. Where a limitation ismade to A for life, remainder to the heirs or heirs ofthe body of B, A has only a life estate. But if thelimitation be to A for life, remainder to the heirs orheirs of the body of A, he has an inheritance. Theformer is, and the latter is not, a remainder. Theonly reason given by our writers for this difference is,that the latter limitation is within the rule in Shel-ley's case. Mr. Fearne states it thus: "Wherever anancestor takes an estate of freehold, and a remainderis thereon limited mediately or immediately in thesame conveyance to his heirs or to the heirs of hisbody, such remainder is executed in the ancestor."Why 1 Neither the great argument of Mr. Justice

1 Co. Litt. 104. t 3 Co: Litt 609. : 3 Rep. 82.

46 HEIR. -THE RULE IN SHELLEY'S CASE.

Blackstone in Perrin and Blake, nor the admira-ble criticism of Mr. Fearne on that case and therule itself, enlightens us as to its origin. It is tooimportant, however, not to receive careful consid-eration.

An estate in fee did not originally pass an estate inthe same sense as we now use it. For instance,where an estate was granted to a person and hisheirs, he could not alienate it without the consent ofthe heir.* The heir took by purchase, and not bydescent. This was equally true of base or qualifiedand conditional fees. But before the time of Glan-ville (A. D. 1189), tenants in fee simple, as we nowterm them, had acquired the power, but tenants infee conditional still continued unable, to alienate.When Bracton wrote (A. D. 1268), the latter hadalso obtained the right of alienation. This, it is uni-versally admitted, was produced by judicial legislation.To correct this novelty, and restore the ancient Com-mon Law, the statute de donis was enacted (A. D.1285).t It was merely declaratory, and enjoined thatthe will of the donor secundum formam chartce, whichhad beforetime been disregarded, should thereafterbe observed. It is at this point that our law divergesfrom the English law. Fees tail with them corre-spond exactly to the fees conditional of the CommonLaw; at all events, if they do not, it is because courtshave adopted principles irreconcilable with the stat-ute de donis. In this country, fees conditional atCommon Law are recognized, and at the same timethe rule in Shelley's case. It is totally unnecessaryto resort to the idea of the performance of a condition

* 3 Kent, 403. t1 Burr. 105.

HEIR. - TAE RULE IN SHELLEY'S CASE.

by the ancestor to execute the remainder in him, forthe limitation is within the very letter and spirit ofthe rule in Shelley's case. And to apply this rule inthe performance of a condition to fees conditional atCommon Law is an error, inasmuch as juridical historyand English legislation prove that where a limitationwas made at Common Law to A and the heirs of thebody, they took by purchase, and not by descent, -and upon the death of the ancestor might recover theestate by a suit at law.

However, juridical writers have stated that they areconditional fees for this reason, - that it was a con-dition implied, that, if the ancestor begot heirs of hisbody, he should have an inheritance. As well mightit be said, that, where an estate was granted to A andhis heirs, it was upon condition that he should havean inheritance if he had heirs. For by the ancientCommon Law, as we have seen, he could not alienateif he had heirs, and such, the statute de donis declares,was the Common Law of conditional fees. In thesecases, the words heirs and heirs of the bod y only de-termined the quantity of estate that passed from thedonor, and in both cases, upon the failure of heirs,general or special, the land reverted to the donor.This is the only conclusion that can be drawn fromBracton, who wrote (A. D. 1268) seventeen years be-fore the enactment of the statute de donis. He is,therefore, the latest authority on this subject. Afterstating a coarcted limitation to particular heirs, hesays, " Si autem, nullos tales haredes habuerit, rever-tatur illa terra, ad donatorem per conditionem tacitametiam si nulla mentio in donatione habeatur." * Which

* Lit). 2.

4S HEIR. -THE RULE IN SIELLEY'S CASE.

may be translated thus: "If the tenant shall have noheirs of his body, the land reverts to the donor by animplied condition, even if none be expressed in thedeed." Again, he states that, as the remoter heirs areexcluded, if the heirs of the body fail, the land revertsto the donor by a condition expressed or implied; -"in quo casu, cum omnes haeredes remotiores exclu-duntur, sit terra reversura ad donatorem per condi-tionem tacitam vel expressam si tales hueredes defice-rint sicut adjicit donator in charta donationis." Thecondition was not to enlarge the estate of the tenant,but to cause it to revert to the donor. In otherwords, the condition was not that he should have afee upon the birth of issue, but that if he did nothave issue it should revert to the donor, and if he didhave heirs it should go to them secundum formamchartw. Plowden states the rule with accuracy inthe following sentence: "The fee simple absolutewas where land was given to a man and his heirs;the other, to the heirs of his body, which was also feesimple." * (Why, then, was the birth of issue not acondition in both cases ? ) "But in this case (fee con-ditional) there was a condition annexed to it, that, ifhe died without heirs, the land should revert to thedonor." t Clearly the condition was for the benefitof the donor, and whereby he might regain his oldestate, and not for the benefit of the donee, and toenlarge his estate. We apprehend, therefore, that itwas upon some other ground than the performanceof a condition by the donee, that the judges deter-mined that upon the birth of issue the limitation toheirs of the body was executed in him. And the

*235, b. f I1P. W. 74.

HEIR. - TKE RULE IN SHELLEY'S CASE.

true ground is, as we have before intimated, the rulein Shelley's case.

Blackstone attributes the interpretation of theselimitations adopted by the judges to their sense ofthe inconveniences of fettered inheritances.* Theclamorous demand of the barons for the enactmentof the statute de donis proves that they did not feelthese inconveniences, and they owned nearly everyacre in the kingdom. Many attempts were made inthe succeeding two hundred years to repeal it,t butit had contributed so much to the increase of thepower of the barons, that they always refused theirconsent. At length, Taltarum's case was got upby Edward the Fourth, and estates tail were defeatedby the astutia of the judges. An open avowal of thesentiment, that these estates were inconvenient to thecrown, as they were insuperable impediments to royalvengeance and rapacity, would have been extremelyperilous to the reverend bench. They exhibitedtheir astutia by applying to these limitations a rulederived from the Civil Law. The subject deservesexamination, not only because of the importance ofthe rule in Shelley's case, but because it will uncoveralso the true character of the heir at Common Law,-an inquiry which has been altogether neglected byour juridical writers.

It is certain that, where a limitation was made tothe heirs of the body, these were intended to take bypurchase, and not by descent. Such was the old Com-mon Law. "But if a man," says Lord Coke, "makesa gift in tail, or a lease for life, the remainder to his

* Vol. I. 112. t Barr. Stat. 131.

50 HEIR. -TIlE RULE IN SHELLEY'S CASE.

right heirs, this remainder is void, and he hath thereversion in him; for the ancestor during his lifebeareth in his body in judgment of law all his heirs,and therefore it is truly said that hweres est pars ante-cessoris. And this appeareth in a common case, thatif land be given to a man and his heirs, all his heirsare so totally in him as he may give the land towhom he will." * Here, the idea expressed is, thatduring the life of the ancestor he and his heirs areone person, - hweres est pars antecessoris, - the heiris part of him. So the family and the father, injudgment of law, are one; their rights are his, andcan only be vindicated, as to other persons, byand through him. So the rights of all the familiesin a state are so totally in the state that it may dis-pose of them. The idea of the unity of the fatherand son, the ancestor and heir, was familiar to theRomans. Cicero, in his philosophic treatise on laws,recognizes it: "Coronam virtute partam, et ei quipeperisset et ejus parenti, sine fraude lex impositamjubet." t On the other hand, the heir quoadviododuring the life of the ancestor joined with him inthe property. Thus Cicero, in his speech againstVerres, says of children, " Quibus cum vivi bona nostrapartimur." So Justinian: "Seda sui quidem haeredesideo appellantur, quia domestici hveredes, et vivoquoque patre, quoadmodo domini existimantur." tAgain, in a play of Terence, a father speaking of hisson calls him "meus particeps"; heres pars anteces-soris. § The Code states it thus: "Cum et naturapater et filius, eadem esse persona pene intelligan-

2 Co. Litt. 146. t 2. 24.Gaius, 2. 157. Justinian, 2. 19. § 6. 26.

HEIR. - THE RULE IN SHELLEY'S CASE.

tur." Indeed, the word hceres, heir, is only anotherform of herus, owner.*

By the adoption of this rule of the Civil Law, that

the heir and the ancestor are one, - heres pars ante-cessoris, - the limitations to the heir were executedin the ancestor. The heir did not, by the Civil Law,

acquire the right after the death of the ancestor; he

then succeeded to him in the enjoyment of the useand profits. Upon the same principle, the earnings of

the child become the property of the father. Thelatter absorbs all his rights, and his wrongs can onlybe vindicated by the father. Hence, in the languageof Lord Coke, "if land be limited to a man and the

heirs of his body, all his heirs are so totally in him as

he may give the land to whom he will." The max-

im that vemo est hares viventis is strictly applicable

to this explanation. Heir means, in that maxim,owner. Before the death of the ancestor, he is heirapparent; but in a particular case, as Coke shows,t

the heir apparent may also be complete heir andhave the use and profits of an estate. He is termed

the hceres astrarius, T and he takes by descent; for

• De verb. Signi, 22 Pand. 168, s. 108. t 2 Co. Litt. 226.

: Ducange, Gloss., v. Astrum. The Celtic customs, of which this species

of heirship was one, did not recognize the right of the eldcr brother to take

the family residence, le manoir. On the contrary, it was the privilege of

the younger. Such was also the Gallic custom, to which Cwsar informs

us that those of Kent had a strong resemblance. The former say, L'as-

tre (the fireplace or hearth) demeura al puing. The law of Wales also,

Frater natu minimus habebit domicilium principale. Montesquieu as to the

Tartars, L. 18, c. 21. The reason given by the writers on the customary

laws of the Celts and Gauls is, that these tribes were accustomed to see

the elder sons going forth on migratory or predatory excursions, leaving

the care of the aged, the women and children, to the younger. It is an un-

solved question in history, whence the Celts and Gauls originally brought

their customs. Certainly they were washed, by the waves of tribes that we

call Germans, into France.

WARRANTY.

if he took by purchase, he would be subject to re-lief.

The peculiar character of heirship is discoverablein every part of the law, and will be still further de-veloped in the next chapter.*

CHAPTER X.

WARRANTY.

WHERE a limitation was made to the heirs, orheirs of the body, we have seen that the estate in re-mainder became executed in the ancestor. Now, incase the ancestor sold the estate, he was bound bythe feudal law to protect the purchaser in its enjoy-ment, and in case of eviction, to recompense himwith other lands. This was termed a warranty orcovenant real, and bound the lands as a lien, intowhose hands soever they passed by descent. And asfeoffment, fine, exchange, partition, were the onlyspecies of conveyance, the feoffer was always boundby an implied warranty, in every sale of lands.t Ex-press warranties could scarcely exist, inasmuch aswriting was to the generality an unknown art. Thus,by the ancient Common Law every sale of lands im-plied a warranty, and so far is identical with the CivilLaw. Good faith is the foundation of warranty inboth systems.

When deeds came into use, the warranty was ex-

* See Grotius de Jure, 2. 9. 12. t 5 Cruise, 84.

WARRANTY.

pressed. This would, of course, exclude any impliedwarranty inconsistent with the express; and in thatsense it is true that expressio unius exciusio alterius."For if A makes a feoffinent by dedi, and in the deeddoth warrant against J. S. and his heirs, yet dedi isa general warranty during the life of the feoffer," sothat the feoffee could vouch the feoffer during hislife. "And if a man make a lease for life, re-serving a rent, and add an express warranty, herethe express warranty doth not take away the war-ranty in law, for he hath the election to vouch byforce of either of them." * In a previous passage,p. 290, Coke states: "Note that by the Civil Lawevery man is bound to warrant the thing that he sell-eth or conveyeth, albeit there be no express warranty;but the Common Law bindeth him not, unless therebe a warranty either in deed or in law, for careatemptor." Neither doth the Civil Law bind him towarrant, unless there be a warranty express or im-plied. It bindeth him to warrant every thing heselleth, for instance, land; so does every conveyanceat Common Law. These are feoffment, fine, ex-change, partition. But Coke has overlooked, in theabove passage, the difference between conveyances atCommon Law, and those having their operation un-der the statute of uses, - a difference of which Mr.Fearne has made great use in his essay on Contin-gent Remainders. It is this, that conveyances underthe statute of uses transfer only the right of thedonor, whilst those at Common Law convey the rightof the party, destroy contingent estates, and investthe donee with an absolute fee. It is in the former

* 2 Co. Litt. 298.5,

WARRANTY.

that express warranty is indispensable, and to themthat the rule caveat emptor properly applies. So ca-veat emptor applies, for the same reason, to sales byofficial persons, as sheriffs and masters in chancery,whose deeds are not properly conveyances, but me-morials of the execution of judgments and decrees.It is plain, therefore, that the Civil does not differfrom the Common Law, but from that law concern-ing conveyances which has grown up under the stat-ute of uses.

The rule of the Common Law is, that the heir isnot bound unless named. The extent of his liabilityis determined by the value of the assets. It is im-portant to distinguish between his liability and the

extent of it. When his consent was necessary toalienation, no doubt he was named or joined. So,after deeds came into use, he was named or joined,and his liability was to make recompense in case of

the eviction of the tenant. Now an heir cannot di-vest himself of that character, for he is born heir;and if, therefore, the rule that the heir, if named, wasbound, was strictly enforced, his heirship would havebeen often highly detrimental. To correct this, amodification was introduced, which did not alter thenature of heirship, but limited his liability to theamount of assets. The modification is sometimes ex-pressed thus, - that the heir is bound only as tenantof the lands.* But it will be seen that the questiontherein was, substantially, whether the heir shouldhave the benefit of the modification of the rule, andbe held liable only to the extent of assets. His lia-bility as heir was conceded. The like modification

4 3 Rep. 12, Harbut's case.

WARRANTY.

prevails in case the heir is named in a bond of theancestor. Then the heir, as in the former case, is

responsible as heir, but his liability does not extendbeyond assets.* In an action on the bond, he wassue( in the debct and detinet, whilst an executor issued only in the detinet. The latter was the repre-

sentative of the deceased debtor, the heir was chargedas the debtor.nt And he could not plead that thereis an executor who has assets; he must confess the

action and show the certainty of assets.+ For theobligation is a personal lien. Now the heir cannotbe accounted the debtor in such case, where all thepersonalty goes to the executor, without admitting

that lie and the ancestor are one, independent of as-sets. And in all this, says Lord Chancellor Maccles-field, " the Common Law imitated the Civil ],aw." §

']'le ]ltomans regarded heirship just as the CommonLaw does. Insolvency was with them a disgrace, -

not only to the unfortunate debtor, but to his flimily.

It was a powerful objection, in vulgar apprehension,to the claims of a candidate for office, that his fatherwas a bankrupt. To prevent this disgrace, the com-mon practice was to appoint a slave the heir. Wherehe died intestate, the prrntorian law intervened andpermitted the heir to renounce his right as heir, and

to take the estate, as a possessor bonorum, or tenant, orbailec, - who then filed his inventory of the assets,by which both he and the creditors, unless they couldshow fraud, wcre bound. In fact, it was a plea ofriens per descent, - or only a limited amount of them.

But the character of heir was unchanged. '[he Com-

*2 Co. Litt. 303. t 2 Saunders, 7. a, note.

2 Co. Litt. 303. § I P. W. 776.

DIVERSITY OF RIGHTS.

mon Law did not pass through these modifications,but adopted the rule as it existed in the Civil Law ofthe later times.

It may be added, that the characteristics of heirshipenter also into the law of conditions. A warranty isa covenant for the benefit of the donee and his heirs,a condition generally for the benefit of the donor andhis heirs. Neither of these can be assigned, at Com-mon Law, to a third person, but both of them descendto heirs. No chose in action can be assigned to athird person. Is descent an assignment to a thirdperson? No heir can take by purchase the interestthat he might take by descent. Now the heir doestake by descent, and that is not an assignment to athird person. The only explanation of this difficultyis, that the heir in apprehension of law is one withthe ancestor, lceres pars antecessoris. Hence his landis attributed to the father, his rights are vindicatedby the father, and upon the death of the latter, the.heir is not a third person, but the same person, andtherefore personally a debtor for the obligations ofthe father. The effect, therefore, of the rule in Shel-ley's case and of warranty is to maintain the unity ofperson and estate.

CHAPTER XI.

DIVERSITY OF RIGHTS.

THE law recognizes this division of rights: - 1.Those which spring from the relation of parties to a

DIVERSITY OF RIGHTS.

particular purpose, as the rights springing from com-merce by partners, and those rights which relate to aparticular property, as of joint tenants. 2. Thoserights which are not connected with any particular pur-pose or estate, the rights of an individual. Between therights of a society, partnership, or joint tenancy, andthose of an individual, not a partner, joint tenant, orcorporator, there is a broad and plain difference. Butwhen we consider' that the same individual has rightsas such, and also, at the same time, as a corporator, orpartner, or joint tenant, or citizen, it is extremely diffi-cult to define accurately what, in judgment of law,are the rights of the associate and the rights of theindividual. Thus, the difficulty is very great in thecase of rights to land in which the rights of the in-dividual and of the corporator are intimately blended.It may be said, in general terms, that as a corporatoror joint tenant his rights are such as the law ofthe corporation or joint tenancy recognizes. But theindividual right springs from the general light, andis only distinguishable from it when the individualexercises it. So that this general proposition, how-ever true in the abstract, does not aid us in obtaininga clear apprehension of the cases to which it is prop-erly applicable. Now, the necessity of some rule bywhich we may distinguish these classes of right is verymanifest, for thereby in practice we should arrive atcorrect conclusions, not only as to the rights, powers,and duties of the corporator, but also of the individ-ual. Such a rule, for example, would determinewhen a contract bound an individual as a partner, -that is, was obligatory on the partnership, - andwhen it did not bind that society, but bound the in-dividual. It is plain that the question under consid-

DIVERSITY OF RIGHTS.

eration, therefore, touches the foundation of the mostimportant affairs of corporations public and private,partnerships, and all other unions of men, with orwithout connection to property.

Perhaps the nearest approximation that can bemade to certainty in the mode of distinguishing theseclasses is by reference, not to the nature of the right,but to the exercise of the means of maintaining andpreserving it. For instance, the state protects eachindividual in the enjoyment of his property, withoutdenying to him the right of protecting it himself.But it does not interfere and use the means of protec-tion, unless the invasion of property is accompaniedwith disturbance of the public peace. The state, be-fore it interferes, regards the end for which it wasformed. In like manner a corporation, the legalentity, does not become a party to a suit where therights of one corporator are invaded by another;nor where one partner injures his copartner, does thepartnership interfere; and, in both these cases, for thereason that the end or purpose for which the societywas created does not demand it. But in all thesecases, where the end or purpose does require it, thecorporation, partnership, joint tenancy, or other asso-ciation, does become a party. There are cases, how-ever, in which the corporation or state may interfere,without denying, at the same time, the right of suitto the individual, as in case of an assault and battery.But still the ends intended to be accomplished by thestate and by the person injured are different. Theformer vindicates the public peace, the latter, thewrongs done to his person. But it is clear that thesuit has no reference to the nature of the right, forthe individual may be, or he may not be, a member of

DIVERSITY OF RIGHTS.

the state. At the same time, it is to be admittedthat the rule suggested does not meet every case thatcan be conceived. Thus, two persons own joint-ly White-acre and one of them owns Black-acre, theadjoining parcel of land, and a question arises as tothe true boundaries; - or suppose that a firm claimsto be a creditor of one of its members; -in suchcases a regard to the end does not direct us to theproper means of determining that question. Thesame proposition was submitted to Pomponius, thateminent Roman lawyer, whose opinions have beenadopted into the Digest. He answered, as we do,that, before the question could be determined by law,the society must be dissolved.

The law has three distinct purposes: - 1. To main-tain the existence and well-being of society. This istrue of every society, public or private, corporate orincorporate. 2. To maintain and preserve the personand property of each individual member free from allburdens which are not common to every other mem-ber. 3. To maintain and preserve the special rightsof each member, and also of each member in relationto property. These special rights of person are, forexample, the rights of magistrates, - special rights ofproperty, as easements. These manifestly are alto-gether accidental, varying in various societies and inthe same society at various times, and always depend-ent upon the will of society. But the first and sec-ond class are fundamental principles, which cannot bevaried in any material degree, without the destruc-tion of the very purposes of society. We shall,therefore, omit all further notice of the third of theseclasses.

The means of accomplishing the just end are some-

DIVERSITY OF RIGHTS.

times general and sometimes individual; - general,when a society defends itself or asserts its rights againstnon-members, or members; individual, when onemember invokes the aid of the law against a fellow-member. As to the second class, the means are indi-vidual; - thus, an individual or class, upon whom atax supposed to be unequal is imposed, or a larger shareof contribution towards debts. But it is evident thatin all such cases of the second class the party com-plaining must be a member. Hence an alien is ex-cluded from participation in any thing relating to thesociety, - not because he lives under a different law,but because his existence is not recognized by the so-ciety. His condition is not exceptional, for the law asa unity has no exception, but many parts. So, like-wise, and on the other hand, where the individual byany means ceases to be a member, his right as a mem-ber to exercise the means of preserving his person andproperty ceases.

It follows from the foregoing proposition, that soci-ety has no right to impose unequal burdens on anymember, - that any member has a right to the meansof preventing it. That, while every member is boundto the extent of his ability to maintain and pre-serve the society, his obligation is limited by refer-ence to the ends of society. That, to accomplishthese ends, he must have a voice in the managementof affairs,- to be used for the preservation and well-being, and not the destruction, of society. That,sharing the burdens, he is enabled to participate inthe benefits of society, and vice versa. The parallelbetween a state and every other society might be stillfurther extended. But sufficient has been said toillustrate the rule suggested.

JOINT TENANCY.

Now these same principles are equally applicable,if we consider an individual of one state, in referenceto a foreign state. Then the diversity of rights is apart of the jus gentium. For example, an Americanis acknowledged by every European power as havingrights, not only if he happens to be within its terri-torial limits, but even although he may never haveentered them. The lex loci contractus will alwaysprevail, except in those few cases in which the publiclaw of the state where the contract is sought to beenforced may forbid. This branch of the law maybe accurately termed the private international law.It is apprehended that the common term conflict oflaws is altogether misapplied. Dr. Story's work onthe subject is not a treatise on the conflict of laws,but on the agreement of laws. Where the law ofone state is in conflict with that of another, it de-pends entirely upon the forum which law will pre-vail. It is only necessary to refer to that learnedwork to establish this opinion. The diversity ofrights between the American and the Frenchman ex-ists only so far as the law of the corporation rendersthe latter the possessor of, and denies to the other,certain corporate privileges.

CHAPTER XII.

JOINT TENANCY.

Tins species of estate furnishes the most perfectinstance of the principle of unity as applied to inter-

JOINT TENANCY.

ests owned by two or more persons. It is one estateas to the state, as to the tenants, and as to third per-sons, being held by unity of time, title, interest, andpossession. This unity can be destroyed at CommonLaw only by the voluntary act of the parties. Itsrelation to tenancy in common is identical with thatof partnership to part-ownership, and it will befound, upon examination, that the principles of theformer are generally applicable to joint tenancy.The jus accrescendi rests upon this idea, that eachowns the whole estate, -singulis in solidum debctur.*

Such, too, is the rule of partnership. Coke statesthat an alien can take as a joint tenant, and that thestate cannot interfere until the estate has vested inhim by survivorship, for the other tenant owns thewhole fee, in solido, as he expresses it." It may bedoubted whether this statement is correct. Undoubt-edly the escheat cannot take place before survivor-ship, for the reason given; but if he were disseized byhis cotenant, he would have been remediless. Theenjoyment, therefore, of the usufruct would be alto-gether dependent upon the will of his cotenant.Moreover, by no manner of means could he acquirejurisdiction, for that is an attribute of the law, andthe alien can take nothing by law, not even a usu-fruct for life. To admit him to be a joint tenant, in

the legal signification of the term, would lead to thedirect contradiction of some of the most certain rulesof the law. He would have the right to bring a realaction, to attend court as one of the pares, &c., &c.; inshort, to exercise those rights which, by the CommonLaw, were peculiar to citizens. A very serious prac-

* G. Hugo, 1. 407. tI. 852, 786.

JOINT TENANCY.

tical difficulty would impede even the joint tenantwho is a citizen, if he was forced to bring ejectment.Can he sue alone ? The production of his title-deedwould prove that he had a cotenant; if he joinedhim in the action, he would fail by reason of thealienage. But if the court should regard him, as intheory he unquestionably ought to be, as non-existing,then the same result would follow as if he were dead,-the other would be sole owner. It was held byLord Hardwicke, that where a legacy was left to twopersons, in words that would make them joint ten-ants, if one of them died before the testator the wholepassed in solido to the other, -not by survivorship,but by force of the words, which made him soleowner.* It is said that an alien may take, but can-not hold. Of course nothing more is meant than that,so long as the state does not interfere, he may enjoythe use and profits. The difference between him anda mere occupant without title is not very plain, forthe latter may enjoy the use and profits until ejectedby the party having the right. But neither the aliennor the tortious occupant can be said to have theright. Besides, the occupancy of the latter will finallyripen into right, whereas that of the former never canresist the claim of the state.

The idea of the jus adcrescendi is more correctlyexpressed in the phrase jus non decrescendi. " Dici-tur etiam jus adcrescendi inter collegiatorios, et quodtamen magis est jus non decrescendi." t This ismanifestly true, for in the case, by way of example,of a joint tenancy, the survivor does not take theother half of the fee by the death of his cotenant;

* I P. W. 700. t R. J. 123.

JUS ACCRESCENDI.

on the contrary, he had the whole during their jointlives, and it is not decreased by the death of the sur-vivor.* They have not, one of them a seizin of onehalf, and the other of the remaining half, but eachhas an undivided moiety of the whole, not the wholeof an undivided moiety. This is what causes jointtenancy to differ from substitutions and remainders.In the latter, the survivor takes that of which he hadno seizin in the lifetime of the deceased. In the lat-ter, one person is substituted in place of another; inthe former the person is not changed. The rulebeing thus understood, and such clearly is its truemeaning, it has a very extensive application in thelaw. Two joint tenants are una persona, and haveunicum patrimonium, or one estate. So a corporation,a partnership, a family, a state, are each one personand possess one estate in apprehension of law. Deathdoes not decrease nor increase the estate, nor destroythe civil person.

CHAPTER XIII.

JUS ACCRESCENDI.

To the citizen alone was the privilege accorded bythe Twelve Tables of declaring the testamentary lawof his estate. Sovereign over his family, his individualwill was the public law of the family, and prevailedover that of the family, the law of nature. This is

* 2 Cruise, 487.

JUS ACCRESCENDI.

also one of the distinctive characteristics of the Com-mon Law. In the former, the identity of the civilperson of the ancestor and heir was rigorously ob-served, so that, in the language of Papinian, unapersona, unicum patrimonium. Hence, nemo potestpro parte testatus pro parte intestatus. The testatornamed only one persona as heir, which, however,might comprehend several individuals, to whom hiswhole estate passed per universitatem, as an entirety.Now in case one of the individuals to whom the es-tate was devised deceased, the other took his share.Because the will of the testator, having in early timesbeen a law made by an ancestor in the assembly ofthe people, with their consent, repealed, as to hisfamily, the general law of succession, and of courserepealed it altogether; so that, to obey this privatelaw, no part of the estate could pass to his next ofkin. The share of the deceased was transferred tothe survivor, to preserve at once the unity of theestate and effect the will of the testator. "Jus ac-crescendi est quia nemo simul testatus et intestatusrecte moriebatur Romae." *

The Common Law has not adopted the rule thatone cannot die partly testate and partly intestate,although it has received the jus accrescendi. TheCivil Law maintained much more rigorously theunity of patrimony, and hence preferred the legateeto the heir by blood; whilst the Common Law favorsthe latter, or the diversity of patrimony. The Gallo-Romans knew nothing of testaments until the con-quest by the Romans. There are, however, traces ofa custom of transferring, in the lifetime of the testa-

Bynkershoek, Obs., Lib. 2. c. 3.6 *

JUS ACCRESCENDI.

tor, by way of sale, his property to a devisee, but lim-ited to those cases in which the testator had no heirsof his body. The heir by blood was always preferredto the devisee, and a difference as to the classes ofpersons to whom they should descend was made be-tween paternal and maternal inheritances. This wasperfectly consistent with an exception to the rule,Neno potest pro parte testatus, &c., that had been intro-duced into the Civil Law by Cuesar, and perpetuatedby Trajan, namely, that a soldier might die partlytestate and partly intestate. After this time, the rulewas thus propounded: " Nemo potest pro parte, tes-tatus, pro parte intestatus decedere, nisi sit miles cujussola voluntas in testando spectatur." The object ofthis rule was to enable the soldier to dispose of his"peculium castrense" to one person, whilst his otherproperty passed either to another legatee of a willmade in solemn form, or descended to his heirs byblood. The diversity of patrimony was in exact ac-cordance with the Gallic customs, so that when willsbegan to be used the military will was selected. Itbecame the fashion of making a testament, and wasagain transmitted to the German tribes ; for, as issaid by the learned Loysel, they comme gens de giterreont recu plusieurs patrimoines et divers heritiers d'unemenie personne.*

The Common Law has preserved the diversity ofpatrimony and the military will. But has also, as inall other instances, adopted the Civil Law rules ofinterpreting them. Hence, whilst the paternal andmaternal inheritances descend to different heirs, yet,in reference to each class, the rule of jus accrescendi,

* Inst. Cout. Lib. 2. 5.

USUFRUCTS.

or the unity of estates, is adopted. Regarding eachclass in itself, the rule is, Una persona, unicum patri-monium.

CHAPTER XIV.

USUFRUCTS.

AN estate for life is the lowest species of estatewhich requires livery of seizin. Littleton classes itwith a term for years. "And the lessor is properlywhere a man letteth to another lands or tenementsfor term of life or for term of years, or to hold at will,he which maketh the lease is called lessor, and lie towhom the lease is made is called lessee." * It was,however, regarded as a higher estate than terms foryears, because the life estate conferred jurisdiction.A principality might be held for life, with dominionover its inhabitants. But in modern times, since thefeudal system expired, and its traces in the law havebeen almost entirely obliterated from every portionof it, and altogether from estates for life, courts haveregardcd them merely according to their true nature.Setting aside all considerations as to jurisdictio-i, theyhave held that an estate for a number of years equalto those of human life was equivalent to a life estate.A term for life is only a term of years equal to theduration of life. Supposing that terms for years weregranted during the feudal age, the want of livery ofseizin rendered the title insecure ; the contract and

* 2 Co. Litt. 719.

USUFRUCTS.

its execution wanted the ordinary publicity or evi-dence of its existence. They were at the will of theparties, and might be annulled at pleasure. Hencethey fell under the denomination of " precaria"; butas society advanced, and writing came into use, theybecame contracts cognizable in courts, - whilst ten-ancy by sufferance and at will continued to be, asthey are now, precaria. But even as early as the timeof Fleta, that which was a tenancy at will, if verbal,was a term, if written ; * and daily observation showsthat these precarious interests are now ripening intoterms for a year. Now we have seen that Littletonclasses life interests with terms for years, and thatthe law regards them as only equivalent to a term ofyears. We apprehend, therefore, that life estates, aswell as terms for years, are properly usufruct interestsin contradistinction to proprietary. They form thehighest in that class, whilst by their ancient attributeof jurisdiction they unite the usufructuary class withthe proprietary. Now a usufruct interest is a bail-ment, - the relation of the parties that of letting andhiring,-- and in reference to property it is a chattel.The tenant for life has the rights and the dutieswhich Domat states to be pertinent to the bailee; heshould put the thing to no other use than that forwhich it was hired,- he must commit no waste,he must restore it at the time appointed, - do theservice or pay the rent, - and, in general, observewhatever is required by law, custom, or the contract.On the other hand, lie is entitled to the profits. Thecorrectness of Littleton's classification, and the truthof our remarks, are shown in his seventy-first section.

* 1 Co. Litt. 735.

USUFRUCTS.

There he states that, "if a house be leased to hold atwill, the lessee is not bound to sustain or repair thehouse as tenant for term of years is tied." "For,"says Coke, "the statute of Gloucester extends not toa tenant at will, and therefore for permissive wastethe lessor hath no remedy." * Now by that statutethe lessor had an action for permissive waste againstthe lessee for life as well as for years. t So that atCommon Law neither the tenant for life, years, norat will, was bound to repair. That these were bail-ments appears from the concluding sentences of thesection of Littleton above cited: "But if a tenant atwill commit voluntary waste, as in pulling downhouses, &c., the lessor shall have an action of trespassagainst the lessee. As if I lend to one my sheep totaothe his land, or my oxen to plough the land, andhe killeth my cattle, I may well have an action of tres-pass against him, notwithstanding the lending." Andthe reason is, says Coke, that when the bailee, &c.

Now, it is apparent that a term of years, whetherfor life or for a certain number, is to that extent adiminution of the proprietor's usufruct interest in hisestate. It is substantially a charge upon the princi-pal estate, and, if no rent is paid, is of the nature ofa vivim vadium. Every usufructuary interest is theuse and enjoyment of the property of another. Nowthe difference between a right to a usufruct interestin another's land, for a term of years equal to theduration of a life, and a right to use a part of an-other's land as a way for the same period of time,a right of way,- is only in the mode of enjoyment.Both are usufructs, and both are onerous on the es-

* I. 743. t 1. 732.

USUFRUCTS.

tate of the proprietor. A right to an easement may,according to its nature, belong to one or more indi-viduals, or to one or more by virtue of their connec-tion with a particular tenement. In either case theeasement is a charge upon the servient tenement, anda benefit to the parties enjoying it. Now the rightsof the parties entitled to the easement and the dutiesof the party subject to it are identically those whichwe have seen pertain to the owner of a usufruct.The one is entitled to the full and fiee enjoyment ofthe easement without let or hindrance from the other,but he is not entitled to require the other, the bailer,or servient tenement, to repair. Thus the party en-titled to a right of way cannot, in general, require theother to repair; if it becomes " foundrous," he mustrepair it himself or cease to use it, for he cannot go"extra vias," and travel over the adjoining land ofthe servient tenement, - no more than the tenants forlife could require the proprietor to repair. The stat-ute of Gloucester, however, has altered the CommonILaw so as to compel the tenant for life to repair, butthe owner of a right of way has not yet been com-pelled by statute to do so likewise.

It is apparent, therefore, that the principles of thelaw which governs that extensive class of rights, theusufructuary, - including estates for life, for years,at will, and sufferance, and the multitudinous varietyof servitudes, - are identically those of bailments." I could not but observe with surprise," says SirWilliam Jones, in his preface to the Law of Bail-ments, " that a title which seems the most generallyinteresting should be the least understood and theleast precisely ascertained. Hundreds and thousandsof men pass through life without knowing, or caring

EXECUTORY INTERESTS.

to know, any of the numberless niceties which attendour abstruse though elegant system of real property,and without being acquainted with that exquisitelogic on which our rules of special pleading arefounded; but there is hardly a man who does notevery day contract the obligations of a bailment;and what can be more absurd or dangerous than fre-quently to be bound by duties without knowing thenature or extent of them, and to enjoy rights of whichwe have no just idea ?"

CHAPTER XV.

EXECUTORY INTERESTS.

GRADUALLY, as the feudal law declined, uses andtrusts advanced in importance. Jurisdiction was lostin the fee, and became undistinguishable from it.The courts began to regard estates in reference tousufruct rather than to that which is of much morepublic interest, power. Regarding the life estates, asthey were amply justified in doing, when disconnectedwith jurisdiction, as a mere chattel interest, a termfor ninety-nine years was held equipollent for the sup-port of a remainder to a freehold. And on this view,that estates are only usufructs, is founded the wholedoctrine of executory devises. "An executory de-vise is strictly," says Mr. Fearne, "such a limitationof a future estate or interest in lands or chattels asthe law admits in the case of a will, though contraryto rules of limitation in conveyances at Common

EXECUTORY INTERESTS.

Law." In a very early case it was held that a manmight give a book (any chattel not consumed by use)

to a person for his use during his life, and remainderover. Here, by distinguishing the usufruct from thelegal property, a limitation directly contradictory of

the rule of law was maintained. But no man canhave in the nature of things more than a usufructfor life of any property or any power. The construc-tion by which he has power over his estate after his

death is not founded upon natural, but political rea-sons. It is the unity of jurisdiction that gives himthe limitation to the heirs of his body, and declaresthat his heirs are so totally in him as a civil person-

age that he may give it to whom he will. Having,then, distinguished the usufruct from the legal estate,and thus avoided the rigor of the rule of law, all the

canons of the doctrine of executory devises easily werededuced. Thus, as no man can have more than an

enjoyment for life, if the use is limited to him and hisheirs, and he dies, leaving no heirs living at the timeof his death, there is no reason why another shouldnot be nathed by the testator to succeed to the usu-

fruct; or, as it is stated in the books, a fee may be

limited after a fee. But it is proper to observe, thatthe use of the word .fee either as expressive of juris-diction or right at law is altogether erroneous; and,if taken in either sense strictly, would negative theexistence of executory devises. Another corollaryfrom the usufruct is, that an interest may be limitedto commence in fitturo. Commonly this is termed afreehold, but with a like disregard of correct lan-

guage. It is not a freehold, which is a legal estate,but a chattel interest, and hence is consistent with the

rule at Common Law by which a chattel interest may

EXECUTORY INTERESTS.

be made to commence in futuro. And lastly, becauseit is a chattel interest, it needs no particular estateto support it; whereas, if it were a freehold whichrequired livery of seizin, it must have been precededby a particular estate. There is another rule, that,where a limitation can be construed a remainder, itshall not be taken as an executory devise; that is,where the testator does not express his intentionclearly that his successors shall be regarded as usu-fructuaries, the public law attributes jurisdiction tothe estates created. The public law must prevail overthe private law of any subject.

The misuse of the word freehold, in reference tousufructuary interests, has led to the difference ofconstruction between the limitation of dying withoutissue, as applied to interests in lands and in chattels.It is admitted now that this difference is against gram-matical construction, and the intention of the testa-tor.* Hence the courts have resorted to other, andperhaps as doubtful, verbal criticisms to overcome oravoid former precedents. These are followed, wherethey are in point. It may be observed, that the wholediscussion on the rule in Shelley's case between Mr.Fearne and Mr. Douglas depends on the differenceof the legal estate from the usufruct. Their differ-ence, too, was merely verbal, the one contending forthe intention of the testator, the other for the rigor-ous enforcement of the rule at law. Had they agreedat first, that they were or were not disputing about a.legal estate or a usufruct, the controversy could haveproceeded no further. The true nature of the inter.est is manifestly the substance of the question. More-

* Fearne, 485, n. z.

EXECUTORY INTERESTS.

over, by resolving the question into its true elements,we are enabled to place the decisions, often seeminglycontradictory, upon a solid foundation, and to recon-cile them. The general law must be observed, unlessthe private lawgiver, the testator, exercises his powerto make an exception from it by his own will, in sucha clear and unequivocal manner as excludes doubt.So, in like manner, where a person has a power grant-ed by a deed, his exercise of that power must clearlyand unequivocally refer to its source; and if it doesnot, it will either transfer only such interest as hepossesses, or be utterly void. In short, the rule inShelley's case must be enforced, unless the testatorhas otherwise directed; but the person affirming theexception to exist must prove it.

" The great and essential difference between thenature of a contingent remainder and that of an ex-ecutory devise consists in this : that the first may bebarred and destroyed, or prevented from taking effectby several different means; whereas it is a rule thatan executory devise cannot be prevented or destroyedby any alteration whatsoever in the estate out ofwhich or after which it is limited." * Certainly, whena limitation is admitted to be an executory devise, itcannot be barred; but that consequence of its naturedoes not, as Mr. Fearne states, explain its nature. Itis a usufruct, the enjoyment of which depends upona condition, and not a legal estate upon condition.A feoffment cannot operate except on strictly legalestates, and in such cases as might possibly have ex-isted at the time when they were made in open court.As to usufructs, they are inapplicable, and when a

* Fearne, 418.

POLITICAL STATUS.

conveyance made in that form has been recognizedas of any validity or effect, it has been as a quasi con-veyance under the statute of uses. The great andessential difference, therefore, between contingent re-mainders and executory devises is, that the formerare limitations of legal estates upon condition, andthe latter are limitations of the usufruct upon con-dition. A usufruct is a bailment, and there is norule of law or reason which forbids a contract for thecreation of a bailment at a future period, without aprecedent bailment in some one else ; nor that aparty may not enjoy a bailment to the end of his life,and then that it shall pass to another, or severalothers, upon condition; nor that another may not, ona certain event, participate with the bailee in the en-joyment of it. In short, upon this fundamental dis-tinction between legal estates and usufructs dependall executory interests in lands or in chattels.

CHAPTER XVI.

POLITICAL STATUS.

-lAVING traced the consequences in the law of realestate of the attribution to the landlord of sovereigntyover his vassals or tenants, we are further to considerthis principle in reference to personal rights. As hasbeen before observed, no one in the feudal age, andtherefore in the Common Law, held lands because hepossessed ipolitical rights ; on the contrary, he pos-sesscd political rights only because he was a landlord.

POLITICAL STATUS.

Personal liberty existed, but the man who had nomore was not the liber homo of Magna Charta. Hiscondition was inferior to that of the landlord, and hestood in the middle, between the lord and the villain.In short, the non-landholder had no political status;he was not what we term a citizen. In the docu-ments of the Middle Ages, citizens were known asliberi homines, pares curie, legales homines, and byvarious other titles, all of which meant that they weregood men and true. These formed the basis of thewhole organization, political, civil, and social, andincluded every citizen, whether king or subject.

The importance of this element of sovereignty - thestatus civitatis - has not been sufficiently developed,nor perhaps appreciated, by our juridical writers.Accurate digests of all the cases have been made, butneither their true reason nor the extensive ramifica-tions of it seem to have been understood. This hasarisen, probably, from the defective method in whichthey have treated of every portion of the CommonLaw. From Bracton, inclusive, they have in regularsuccession followed the arrangement of the Institutesof Justinian. In them, no notice is taken of the sub-ject of citizenship, and for an adequate reason. By aseries of laws, commencing at an early period of theRepublic, the status civitatis was gradually bestowedupon the whole Roman world. An alien did not existwithin its borders; therefore it was unnecessary forJustinian - in a work intended merely to teach theneophytes of the law-schools at Berytum, Constanti-nople, and Rome, the rudiments of the law as it thenexisted - to mention a subject only interesting tolegal antiquarians. But it is far different in relationto the Common Law, and our writers have no excuse

POLITICAL STATUS.

for their perfunctory method of treating of it. Wewill consider it first as it concerns the state, and thenas it concerns the individual and the family, and therights of property appertaining to these relations.

It is necessary, for the elucidation of this topic, topremise a few things. In these States, every man hasa right to vote, and thus to participate in legislation,without regard to his possession of property. Butunder the old Common Law, the right to imposetaxes was confined to those who had property to betaxed. It was against its fundamental policy to per-mit a person who did not share the burdens of taxa-tion to impose them on his neighbors. Representa-tion was inseparable from taxation, and taxation wasalways connected with representation. We use thesephrases, familiar to us at present, to express the sameprinciple that was contained in the phrase, the attri-bution of sovereignty to property. Again, it is to bealso observed, that in every code of laws there areprinciples peculiar to that code, and others commonto all civilized nations. For instance, the attributionof sovereignty to property was peculiar to our sys-tem; but the principles of the law of personalty arealmost universal. It has been the practice adoptedgenerally by nations, to confine the right to hold apart of their territory to citizens, and this has notbeen supposed to be detrimental to any of their impor-tant interests ; whilst to extend that rule to personalproperty would manifestly cut them off from the soci-ety of nations. Now, the law of personal property isthe law of nature, so far as it is cognizable in courtsof justice. The Romans, and after them modern ci-vilians, termed it the jus gentium, by which theymeant that body of rules which are generally recog-

7*

POLITICAL STATUS.

nized by all civilized nations as obligatory upon indi-viduals. It must not be confounded with the lawof nations, or international law; nor, on the otherhand, with that law of nature of which moraliststreat. Touching the latter, it is to be observed thatit is, as propounded by speculative writers, directlyantagonistical to the Common Law. The latter main-tains, as its fundamental principle, that property andits consequences, political power, are of positive insti-tution. By it no man can affirm himself entitledeither to property or power, except by the commonconsent of the state. The right to land does notspring from occupation, but from the grant of thestate; nor has any man a right to possess a share ofpolitical power who has not previously obtained ashare of its territory. These principles are, beyonddoubt, inconsistent with the opinions most popular inthis country. It is not our office to defend eitherside, and therefore we omit further notice of them.Blackstone has termed the law of nature the will ofGod. This may be admitted. Cicero had anticipatedthis view; for he declares that he will not arguewith any man concerning the law, who denies theexistence of God, and that he is the source of lavs.*But tle important question is, How is that will to beknown? Those who think that human reason is thetrue test of that will, easily arrive at conclusionswhich justify disobedience to all human laws. As-suming a state of nature once to have existed, inwhich all men were equal and all things were incommon, it has been without difficulty deduced thatproperty is robbery. It is not a little remarkable

De Leg. 1. 6.

POLITICAL STATUS.

that the preachers of the law of nature include themost hostile classes of writers, -the Christian andthe Deist. But all of them fortify their speculationsby citations from the writings of the Roman lawyerswho flourished under the Empire. At that time po-litical rights were not only theoretically, but practi-cally, denied, and no man save the Emperor couldassert a right to his life, liberty, or property. Yetthese lawyers agreed in these two fundamental propo-sitions: "Quod ad jus naturale attinet omnes hominesoquales sunt." "Ratio civilis jura naturalia corrum-pere nequit." Their connection with the law of na-ture and its fruits, the doctrines which vex modemEuropean society, is very plain. How, then, is thelaw of nature to be discovered ? Revelation has dis-closed to man the will of his Maker as to his inter-nal life as an individual. His will as to nations, it isapprehended, will be discovered in those laws whichprevail among civilized nations in all ages. Theseare the moral facts demonstrating his providence ascertainly as any physical facts. The one is the phys-ical law of nature, the other the moral. And wherehuman reason, by speculation, anticipates these re-sults, it deserves applause, but it does not constitutethe test of their truth. They exist and are laws,whether discovered or undiscovered.

JUDICIAL OFFICE.

CHAPTER XVII.

JUDICIAL OFFICE.

THE author of Fleta counsels the king, "Caveatsibi ne in sede judicandi quemquam loco suo substi-tuat insipientem et indoctum, corruptibilem vel seve-rum." Can an alien sit in the seat of the sovereign ?Whether sovereignty resides in one or many, sover-eignty becomes subject by the delegation of jurisdic-tion to an alien power. The recognition by KingJohn of the Pope as his feudal lord, which includesjurisdiction, was felt to be, and was resisted as, a vio-lation of the fundamental law of the state. Indeed,such a doctrine never could have obtained the sanc-tion of the descendants of the Norman conquerors.It is matter of history, that William took an oathto observe the native laws, but he committed the ad-ministration of them to his Normans, and speedilythey were subverted. Jurisdiction could not, con-sistently with public safety nor the feudal law, bedelegated to any but a member of the body politic.Certainly, before the separation of jurisdiction fromproperty, no alien could have been a judge. Thatforeigners, in the troublous years that fbllowed thedeath of the Conqueror, did occasionally occupy judi-cial places, is certain, but this was an incident of civilstrife when laws were silent. Henry the First, in acapitulary, declared that "peregrina vero judicia, om-nibus modis submovemus." Such is the law of the

* Lib. I. c. 17.

COURTS.

present day; five centuries have produced no change.The same is true also of every portion of the admin-istration of justice. No alien can, by Common Law,be returned of juries for the trial of issues betweenthe state and a subject, or between subject and sub-ject. The jury de medietate is by statutory enact-ment. The objection that kings of England havebeen alien born, and have the power of appointingjudges, is of no force; for the descent of the crownis per se an act of naturalization, and removes allthe impurities from the fountain of justice.

CHAPTER XVIII.

COURTS.

AMONG the earliest changes in the feudal systemwas the creation of courts, in which the feudal lorddid not exercise jurisdiction in person, but by meansof his delegates. But this transference of jurisdic-tion made no change in the principles upon which itwas exercised. It was less summary, more formal,and more just. A feudal lord had jurisdiction onlyover his own vassals, and his own land; without bothwere subject to him, he could not decide the contro-versy. When the trial of causes relating to land wasassigned to the Court of Common Pleas, it also hadjurisdiction only in case both vassals and land werewithin the territorial limits. Hence, as the lord couldnot try a cause concerning land in another domain,neither can that court an ejectment for lands in Ire-

COURTS.

land. Nor can it try a cause in which the kingprosecutes a criminal, for that has been assigned toanother court. Nor can the King's Bench try a landcause, nor a criminal whose offence has been com-mitted out of the domain. In short, each court mustpossess competency as to persons and subject-matter,and all of them united possess all the jurisdictionthat the feudal lord possessed. They are the dele-gates of the jurisdiction of the state. Hence, as theyare delegates of the lord, they cannot derive jurisdic-tion from the consent of the litigants. They have itor have it not as delegates of the sovereign. Just asthe vassal of one baron could not consent that histitle to land in another baron's territory should bedetermined by the former. Under the feudal law, therecognition of the jurisdiction of another baronialcourt than that of which he was one of the pares,would have been punished by forfeiture, - for it wasa denial of his allegiance. Sequestration to compelappearance and foreign attachment by custom aremerely devices to compel an absent party to submithimself to the jurisdiction, and do not impinge onthe principles already mentioned.

It was also a necessary consequence of the delega-tion of jurisdiction, that courts should so frame theirmodes of procedure as not to contradict the funda-mental principle of their authority, competency as tojurisdiction and to property. It was not less neces-sary that this unity should exist in title to land, thanin the court which was to determine a controversyconcerning it. And this is equally true of all othercourts, - civil, maritime, naval, and ecclesiastical.They must possess competency as to persons and sub-ject-inatter. The observance of this principle has

COURTS.

been strict, and is discoverable in the least importantmatters of special pleadings. Thus, in a real action,the venue is said to be local, and must be stated to bewithin those territorial limits which the ancientCourt Baron, whose jurisdiction the Common Pleasnow exercises, formerly supervised. So, likewise, inpersonal actions, the venue, though transitory, - thatis, may be alleged of any place,- must be of someplace within the territorial limits of the court. Ju-risdiction over the person and the subject-mattermust be united. It is apparent, therefore, that thesame principle of unity which forms the basis of thepolitical and territorial organization of the state,forms also the foundation of all courts, -of theirforms and rules of procedure. It concerns the great-est questions that can arise, without disregarding sopetty a technicality as whether a venue shall be localor transitory. For the reasons already stated, thesame controlling power is exercised by it over courtshaving the adjudication of crimes, and the impositionof forfeitures and punishments, - their proceedingsand their forms.

The baronial courts never exercised what we termcriminal jurisdiction. The distinction between pub-lic and private judges is found in the earliest periodof the Middle Ages. Savigny has noticed th, fact,that the compilations of laws made by the variousconquering tribes were criminal codes, with a fewprovisions as to rights of property. They reservedto themselves, necessarily, the administration of pub-lic justice. Masters of the country by right of thesword, they had, even according to the Roman max-ims, the criminal jurisdiction. The count, or bywhatever other name the chief was called, recogniized

CITIZENSHIP.

no distinction between his follower and his subject,as to crime,- both were equally under the power ofthe sword. Between them, as to offences, the differ-ence was only in the degree of punishment. Henceit is that the public law of the feudal age differs alto-gether from the private, - not only in principle, butalso in its forms of procedure. In the former thereis not the slightest trace of Roman law, in the latterit is always discoverable.

CHAPTER XIX.

CITIZENSHIP.

IT is evident from what has been said, that thecitizen or landholder held, in relation to the non-landholder, a position of dignity and superiority.Savigny thinks that dignity is the proper word, andexpresses accurately the idea of citizenship in thefeudal age. "Thus there was one dignity commonto all freemen, and a higher dignity confined to thenobility. The words dignit and freeman correspondto those of caput and civis optino jure among theRomans." Ie refers to the period of the Repub-lic, when the patricians were distinguished from theplebeians rather by the antiquity of their origin thanthe importance of their privileges, and when thename of ciris was common to all classes of citizens.This dignity was carefully protected from usurpation

• Hist. M. A., I. scc. 54.

CITIZENSHIP.

by rendering it impossible for an alien to become amember of the community, except by obtaining thesolemn and public consent of the sovereign, or state.This sentiment of the dignity of citizenship was, aswe have seen, a striking trait in the character of theGermans, as well as of the Romans. The lord andthe vassal, the noble and the plebeian, were equallyproud of it. We have three remarkable historicalinstances in proof of this assertion. A barbarian,half naked and possessed of only the rudest arms,haughtily told Coesar, "Liberum se, libereque civi-tatis." * The Apostle Paul, born of the despised raceof conquered Judea, when about to be scourged by acenturion, said, " I am a Roman citizen," and "thechief captain went away afraid." A Roman Senator,Scipio, the second Africanus, being interrupted inthe midst of a speech by the murmurs of a crowd ofadopted citizens who stood around the tribune, struckthem mute with the insolent exclamation, " Silence!ye bastards of Italy." The barbarian, the ChristianApostle, and the pagan Senator equally felt proudbecause they "had inherited the ennobling qualityof original citizenship." We have quoted the wordsof a German who himself felt this sentiment, and whoof all men that have lived in modern times best un-derstood the character and history of Rome, -. Nie-buhr. t

This common sentiment of the dignity of the citi-zen led among the German tribes, when they becamelandholders, to the establishment of rules for the pro-tection of this dignity identical with those used bythe Romans. Thus the slightest infringement upon

* Comm. 5. 7, and 3. 10. t Vol. 1. p. 238.

8

CITIZENSHIP.

his land was a great wrong; it was a trespass, al-though the trespasser had merely walked over unin-closed land. His house was his castle, and upon nopretence could be entered without his consent, un-less the highest public interests required it. It washis castle, because, say Lord Coke and Gaius, "do-mus tutissimum cuique refugium atque receptacu-lum." ' His person was sacred, and he might put hisassailant to death in case his own life was in peril.Such, also, is the rule of the Civil Law as stated byGaius.t A burglar might be put to death si noxfurtum factum est, si eum aliquis occidisset jure ccesusesto. A robber of a dwelling-house by day shall bebeaten with rods,- si lucifurtumfaxit. A robber byday, if armed and he defends himself, may be killed,provided the assailed cries for help, - si se telo de-fenset, quiritato, plorato que, post deinde, &c. + Inthe early age of the Republic the creditor had whatLord Coke calls a personal lien, - nexius, - a mort-gage of the person of the debtor, - and might, uponhis default in payment, have kept him as his slave orsold him. The gambling debts of the Germans werefrequently paid in the same manner. The CommonLaw has adopted the modification of the rule whichwas introduced in the time of Theodosius, by whomit was declared that imprisonment of a debtor forthe smallest space of time was a full satisfaction: -"Nec sane remuneratione precii debet exposcere cui,etiam minimi temporis spatio servitium satisfecitingenui." §

The dignity of the baron, the citizen, protected

O Semayne's Case. t Lib. 1.

t Twelve Tables. § Cod. Theod. III. 3. 1.

ALIENS.

his family; a word including his estate as well as hiswife, children, and dependants. Hence, to do aninjury to his wife, either in person or character, orto his children, or to his servants, was his wrong.They, and their earnings and acquisitions, were his,and they could be vindicated only by him. Exceptthrough him, they had no rights of which the lawtook notice. The jurisdiction over his vassals wasexercised by virtue of their possession of parts of hisdomain; but over his wife, children, and servants,because they were part of himself.

CHAPTER XX.

ALIENS.

IT is commonly said that an alien has capacity totake a fee simple by purchase, but not to hold it;and that he cannot even take by an act of law. Theproposition would be more accurately stated thus:that by the Common Law lands can be holden onlyby citizens. It is not sufficient that the person beinnocent of crime, or have paid the full value to theowner; he must also have the status. Nor is theexclusion of the alien a penalty upon the person forbeing born out of the ligeance; nor after he has pur-chased is the escheat in the nature of a forfeiture.*On the contrary, in the judgment of law, the alien,so far as the holding of lands is concerned, does not

* 2 Brown, P. C. 91.

ALIENS.

exist, and the escheat takes place as if the last ownerhad deceased without heirs. It is indispensable thatthe person should be a member of the political com-munity, free of the corporation, in order to enjoyany of its benefits. That land is holden only in virtueof political character is shown conclusively by thefact, that a native is not necessarily entitled to pur-chase and hold it. As where a villain, who in theCommon Law is called nativus, "purchases in feesimple or in fee tail, the lord of the villain may enterinto the land and oust the villain and his heirs forever; and after, the lord may, if he will, let the sameland to the villain to hold in villainage." * So, wherea freeman held lands by villainage, he had no politi-cal rights, -did not participate in the administra-tion of justice by courts, - and differed in no respectfrom a villain. On the other hand, a villain whopurchased lands, and held them by a free tenure, was,except as to the lord, a freeman. The villain, bymanumission of his lord, became a citizen, as thealien does by naturalization. In both cases they ac-quire status on the same principle,- adoption intothe political family. This appears from the com-ments of Lord Coke upon the word enfranchisement:"It is derived from the word franchise, that is, lib-erty, and in the Common Law hath divers significa-tions; sometimes incorporating of a man to be free ofa company or body politic; sometimes to make analien a citizen, and here to manumise a villain orbondman." t The alien must receive the franchise ofmembership of the body politic. This could be ob-tained only with the consent of the sovereignty;

* 1 Co. Litt. 405. t Ibid. 497.

ALIENS.

that for the villain was his lord, - for the alien, thestate. A native freeborn man has now by the Com-mon Law the common consent of all the members ofthe body politic, - the status as his birthright.

To hold lands, therefore, the person must be capa-ble as well by the political part as by the jus gentiumof the municipal law. By the former he participatesin theory in the administration of the affairs of thestate. It is the union of jurisdiction and propertywhich constitutes a perfect title to land. In the caseof the alien these are severed, and hence he has novoice in the formation or administration of the law.He is not one of the pares curie, and therefore can-not institute an action real or mixed; but havingthe benefit of the jus gentium, he may institute a per-sonal action. But even this was denied him in theearly age of the Common Law. The foreigners whovisited England were generally merchants, and mostof them Jews, and were safe neither in life, liberty,nor property. The thirtieth chapter of Magna Charta,it is believed, is the first statutory enactment by whichalien merchants obtained "salvum et securum con-ductum exire de Anglia, et venire, et morari et ire,tam per terrain, quam per aquam," to buy and to sell.It is printed in all the editions of the statutes as ofthe ninth year of Henry III., but it is in fact atranscript from the roll of 25 Edward I., who atthat time confirmed it. As late, therefore, as Ed-ward I., none but merchants could visit Englandwith safety. Other aliens, unless protected by aroyal license, so far from acquiring lands and be-coming feudal lords, entered the kingdom at theperil of their lives. No Habeas Corpus existed torelease them from the dungeons of the noble out-

GUARDIANSHIP.

law. Thus more than two centuries after the Con-quest* aliens were treated as enemies. The onlymodification of the rigor of this rule that has yet beenmade, is the permission of the alien to enjoy a leaseof a house for habitation. This, too, is a judicial in-ference from the above-cited chapter of Magna Charta.So that, with this slight amelioration of his condition,the alien as to lands is as much under the ban of thelaw as when William the Conqueror enacted that,omnes liberi homines" should swear to defend his"terras et honores contra inimicos et alienigenos."In all ages of the Common Law, therefore, only cit-izens have had the capacity for the full enjoyment ofall rights, political and civil.

CHAPTER XXI.

GUARDIANSHIP.

Tim consequences of political status, as to the pub-lic and private rights of the individual, having beennoticed, it is now to be considered in reference to thefamily. Nations have differed greatly in their lawsas to paternal authority, but the feudal law recog-nized the relation between the father and his childonly for political purposes. The father could not sellhim into slavery, nor put him to death, nor controlhis conduct when he became able to do military ser-vice. As the heir apparent, lie was treated with def-

* A. D. 1297.

GUARDIANSHIP.

erence by his father's retainers, but he was still onlythe first of his vassals. It was as a vassal that hewas known to the law. The duties of the lord to thevassal were to protect him in his person and estate.When the vassal, from any cause, could not render theservices due, the lord might enter upon his lands andtake the profits, either temporarily or perpetually;the right was suspended or determined. Temporarysuspension by reason of the infancy of the vassal waswardship. Now it is manifest that the lord - king ornoble - held towards his minor vassal a paternal rela-tion. Guardianship, which by nature belongs to thefather, by the feudal law belonged to the lord. Thelatter was entitled of right to the care of the personas well as of the estate of his young vassal. Theperson and estate, property and sovereignty, were in-separable, except in those instances in which the vas-sal held lands of several lords. In such case posses-sion of the person gave priority of right to its careand control. Thus the lord had over him paternapotestas, and was within his domain parens patrie.This power controlled his nurture, - directed his ed-ucation, his marriage, - and thus, in a great meas-ure, determined the course of his life It is evidentthat, if an alien was the father, the law denied himevery right that the law of nature confers upon pater-nity. Over the estate of his child he could have noauthority, nor, as a consequence, over his person.The family relations, therefore, depended for theirexistence upon the approval of the public law. Allhuman ties were as non-existent, whenever they camein conflict with the principle of unity of sovereigntyand property.

COURTESY.

CHAPTER XXII.

COURTESY.

THE guardianship of the wife by her husband ne-cessarily gave him the management of her estate, andthe enjoyment of its profits. It is only in an old andhighly refined state of civilization that we discovertraces of separate estates. The tenancy by courtesyunites, to a certain extent, guardianship and the in-stitution of separate estate. This custom is said tohave been introduced into England in the reign ofHenry the First. This is extremely improbable, forthe custom was well known in Normandy before theConquest, and was too favorable to the husband tohave fallen into desuetude. It may be that duringthat reign it first received judicial sanction; an opin-ion to which we incline, inasmuch as the cases re-ferred to by our juridical writers are of a little laterdate. Traces of this custom may be found in thewritings of the early portion of the Middle Ages.The Capitularies of Dagobert I. (A. D. 630) express-ly mention it: "Si que mulier qum heereditatempaternam habet post nuptum prcegnans peperit filium,et in ipsa hora mortua fuerit, et infans vivus remane-tit aliquanto spatio vel unius horm, hacreditas maternaad patrem pertinet," &c. The same passage is foundalso in the Code of the Alemanorum,* which, accord-ing to Savigny, was copied from the Bavarian.t Acapitulary was rarely limited to a single tribe, but

* Lib. Al. 63. t 1. e. 9, s. 33.4.

COURTESY.

usually extended to the whole people, and it is highlyprobable, therefore, that courtesy was generally prev-alent.

According to this passage courtesy was only of thelands which the woman derived from her father bydescent. This is the interpretation given to lceredi-tas by Cicero: "tHereditas est pecunia quT mortealicujus ad quempiam pervenit jure nec ea aut legatatestamento aut possessione retenta." Inheritance, inshort, is by descent. In like manner a Roman mag-istrate presiding in Gaul, in the fourth century, writesto his legal friends in Rome this surprising fact, Gi-gnantur Aceredes et non scribuntur. This definition ofCicero is also implied in the Common Law rule thatheirs take by descent, - jure, - for where they maytake as heirs, they cannot take by purchase. Theright by act of law -jure - is always higher thanthat by act of the parties. After the time of Cicero,hwreditas received a wider signification, and meantinheritance acquired by devise as well as by descent."Ac prius de hvreditatibus despiciamus, quarum du-plex condicio est; nam vel ex testamento vel ab in-testato ad nos pertinent." *

Courtesy is also mentioned, as we have observed, inthe Bavarian Code, which was compiled A. D. 637.Savigny states that, in a multitude of passages, theimitation of the Roman law is evident, although theparticular texts which have been followed cannot beindicated. He remarks, however, on the passagefrom the Bavarian Code, (which contains the customof courtesy, and also refers to a provision for the wifeafter the death of the husband,) that lie recognizes in

' Gains, 2. 99.

COURTESY.

it two laws of Justinian, which grant to the survivorof the husband and wife an equal provision out of theprofits of the estate of the other, and he cites theselaws. But he observes also, that, while the law ofJustinian allows this provision only in case the sur-vivor is poor, the Bavarian Code takes no notice ofthis circumstance.*

It is not surprising, therefore, that courtesy shouldbe found in the compilation known as the Petri Ex-ceptiones Legum Romanorum. This work is supposedto have been written in the latter part of the tenthcentury (950- 1000 A.D.). It contains a systematicexposition of the law as it then existed, and in a greatdegree of the Roman law. These are the words ofchapter 33: " Si quis duxerit uxorem et dotem ab eaacceperit vivente uxore habeat omnes fructus dotispropter onera matrimonii. Ea vero defuncta siquidemnullos ex ea habuerit liberos, integro jure, &c. Siautem ex ea filios habuerit solum usum fructum ha-beat - liberi - autem proprietatem." Here, not onlyis the right of the husband to the enjoyment of theprofits determined, but the distinction between theusufructuary and proprietary interests is expresslymarked. It is noticeable, also, that Justinian allowedcourtesy on account of the poverty of the husband;the Bavarian Code takes no notice of that fact, andthe Petri Exceptiones gives the reason of the allow-ance of courtesy, propter onera viatrimonzii.

Glanville, it is to be supposed, knew the latterwork, for he published his treatise A. D. 1186. Yethe states that courtesy was confined to the marita-gium, which is synonymous with dos, and in this re-

* Vol. II. 55, s. 30.

COURTESY.

spect is the same as the phrase paternam h(ereditatemin our citation from the Capitulary. Now maritagiumin the old Common Law books meant only "the landswhich the wife bringeth in frank marriage." But it isnot probable that Glanville used it in that limitedsense, unless we suppose that he, the chief justice ofa Norman prince, was ignorant of the laws and cus-toms of the Normans. If it was first introduced intoEngland by Henry, he derived it from Normandy,and during his reign Glanville wrote. We suppose,therefore, that Glanville used the word maritagium ina sense comprehending all the lands of the wife. TheAncien Coutumier * of Normandy allows courtesy inall the lands of the wife - toute la terre - of whichshe was seized at the time of her death. It is prob-able, however, that this contracted meaning of theword maritagium, as well as the notion that the hus-band could not be entitled unless he was poor, -alackland, - did find acceptance among the civilians ofthat age. We say civilians, for the latter idea was tobe found in none of the customary codes, but wasmentioned by Justinian, and only by him. To cor-

Our references to this code are taken from the learned work of M.

David Houard, a distinguished lawyer of Normandy, entitled, " AnciennesLoix des Francois conserv6es dane les Coutumes Angloises, recueillies

par Littleton." Rouen, A. D. 1766. It contains the Tenure of Littleton

in Norman-French, accompanied by the Ancien Coutumier of Normandy.

Its object, as the title of the work indicates, is to show that the ancient

Norman customs are sources of the laws of England. No one who reads

the work can doubt this fact ; indeed, it has never been denied by any who

have taken the pains to compare the Tenures with the Ancien Coutumier.

We do not except Mr. Reeves, notwithstanding his remarks, Vol. 1I. p. 283,notes. At the same time, it must be allowed that the value of M. Ilouard's

work consists in the amendment of the mutilated texts of Littleton, Glan-

ville, Fleta, Britton, and the Mirroir, together with his collection of the

Tenures and the Coutumier. Littleton copied verbatim and largely fromthe latter.

COURTESY.

rect these errors, Bracton enters into details otherwiseunnecessary. He propounds the rule thus,- thatthe husband, whether he had or had not an estate,was entitled to courtesy if he married a wife having" hwreditatem, maritagium, vel aliquam terrain excausa donationis." * Adding to this summary theword dotem (which is, however, synonymous withmaritagium and therefore unnecessary to the sense),we have in this passage an epitome of the three cita-tions that we have made.

Further, the Capitulary recognizes the distinctionbetween paternal and maternal inheritances. By theCommon Law if a man marries an inheritrix of landsin fee simple, who has issue a son, and the son entersas heir to the mother and then dies without issue,the heirs of the mother shall inherit, and not thoseof the father, for paterna paternis, materna rnaternis.tThen, in the example of courtesy put by Littleton,upon the death of the wife and the issue, the landsought immediately to have descended to the heirs ac-cording to the rule materna maternis. But, on thecontrary, it is disregarded and an exception made infavor of the husband by courtesy propter onera matri-mon ii. The use of the word courtesy in the sense ofa rule of law is not peculiar to black letter; thus,"The courtesy of nations allows you my better, in thatyou are the first-born." + When the reason ceased,where there was no issue, then the national sentiment,Dotem non uxor marito, concurred with the interestsof the maternal heirs in enforcing an observance ofthe general rule of descent, materna maternis.

* Fo]. 437. t 2 Co. Litt. 178.Shakspeare, " As you like it," Act 1. Se. 1.

DOWER.

Such, then, is the origin of this doctrine, and thereason that tenancy by courtesy, to the requisites ofits corresponding estate, dower, - namely, marriage,seizin, and death, - adds that of issue. As it doesnot differ from dower in reference to jurisdiction, weshall postpone our remarks on that topic to the chap-ter on Dower.

CHAPTER XXIII.

DOWER.

THERE are four kinds of dower at Common Lawmentioned in our books. The dower de la plus bellecould be obtained only by the judgment of a court,and its purpose was to prevent the division of landswhich were subject as a unit to military service. Inlike manner, there cannot be partition or endowmentof a castle held pro defensione reyni.*

Dower ad ostium ecclesie is in fact a jointure, whichafter the death of the husband the wife may refuse,and be endowed at Common Law. Coke observesthat it could be granted only at the door of thechurch, because in this and like matters the law re-quires publicity and solemnity. So in the early agesof the Common Law all feoffments were made inthe presence of the pares curke. Deeds executed bythe parties were altogether unknown, for few of thepriests, and fewer of the lords, could sign their names.

* 1 Co. Litt. 797.

DOWER.

But as the transfer was made in the presence of thevicinage, it had, as in cases of dowment ad ostium, allnecessary publicity and solemnity. To perpetuate theproof of these contracts, it was customary to make amemorial of them in the chartulary or leger-book ofsome adjacent monastery.* Dowment made at thedoor of the church, under the patronage of the guar-dian saint, was in all probability duly entered in likemanner by the priests. Mr. Turner has publishedsuch a memorial or marriage settlement in his valu-able History of the Anglo-Saxons. t This kind ofdower was also known in Normandy.

Dower ex assensu differs altogether from dower atCommon Law. It is not assigned out of the hus-band's lands and tenements, but out of the father's orbrother's; and the right to it is by act of the parties,and not by act of law. It is, like the ad ostiun, ajointure, and must be created by deed. From thefact that a deed is indispensable, it is certain that itmust be of comparatively late introduction into Eng-land. All the authorities cited by Coke are of theage of Bracton, about two hundred years after theConquest, and as that was the most flourishing periodof the Civil Law in England, it may also be inferredto owe its origin to that system. This species waswell known to the Lombards, under the name offade)fiun. The words of the Lex Rotharis, as citedby M. la Ferri~re, are these: "De faderfio autem idest, de alio dono quantum pater aut frater dederit eiquando ad maritum ambulaverit." + A. D. 643. TheFranks also used this species of dower. Marculf, a

* 2 BI. Com. 342. t Vol. II. p. 82.Vol. II. p. 158, n. 11.

DOWER.

Frank, and a monk of the diocese of Paris, compiledin A. D. 660 a book of forms. Among them is theprecedent of a deed to create dower ex assensu, - libel-lus dotis.* Savigny refers to this work as a "mostprecious compilation," containing indisputable evi-dence of the wide-spread influence of the Civil Lawin the Middle Ages. On the other hand, all the Com-mon Law writers on the ancient fcudal tenures citehis formula as authority.

The Petri Exceptiones mention it under the nameof propter nuptias donatio. Chap. 7: " Si pater filiisin potestate constitutis donaverit, non valet donatioquam filio nurui prstat." Chap. 33: " Propternuptias vero donatio, defuncta uxore, in patrimoniomariti revertitur, et inter alios res ejus computatur." tThe Ancitn Coutumier of Normandy also containsthe same law. Civilians are agreed that the ante-Justinian law prevailed during the Middle Ages, andthat the compilations of Justinian were unknown.The changes, therefore, which were made in the char-acter of the prop ter nuptias donatio did not affect theGallo-R-oman provinces. This donatio, says Muhlien-bruch, existed originally apud orientes, and was intro-duced into the Roman law by Constantine, A. D.319. From Rome it passed to the provinces, andwas adopted by the German conquerors. Their worksof mixed law have transmitted it to us.

Form. 2. 15.6.t 4 Savigny, App. No. 2.1 M10hlcnb. W. P., Vol. II. see. 539.

DOWER AT COMMON LAW.

CHAPTER XXIV.

DOWER AT COMMON LAW.

TACITUS states that the custom of the Germanswas, that the husband endowed the wife; and in thisrespect they differed from the Gauls, who requiredmutuality of gifts, and from the Romans, who unitedthe Gallic custom with that of the wife endowing thehusband. But it must not be supposed that Tacitus,in the sentence often cited by our juridical writers,-- " dotem non uxor marito, sed uxori maritus," -

referred to dower at Common Law. For in the nextsentence he states that the parents or friehds of thewife were always present to give their approval of thepresents: "Intersunt parentes et propinqui ac muneraprobant." * It was, in fact, a jointure, and if notsatisfactory, the marriage did not take place. Dowerwas known to them, however, under the name ofmorgengabe, and to the Saxons as morgengift, - bothwords meaning the gift of the morning after the mar-riage.t The consummation of the marriage evidentlywas necessary, and our Common Law writers plainlystate that it was the "preemium pudoris." + The An-cien Coutumier also gives the same reason; au cou-cher gagne la femme son donaire. The dower of thewife differed in quantity among the tribes, but theFranks, Burgundians, and Saxons allowed her onethird part de omni re quam simul collaboraverunt,-

De Mor. Ger. 23. t 2 Turner, Ang. Sax. 85.: 1 Co. Litt. 568.

100

DOWER AT COMMON LAW.

de eo qod vir et mulier simul conquiereriint. It wasoriginally the wife's share of the land which she andher husband had jointly labored for or conquered.Now the Germans in their military emigrations werealways accompanied by their wives, and their settle-ments were made, not as soldiers, but as tribes. Aslong as the husband and wife lived, they enjoyed to-gether, to use the energetic expression of the Saxonlaw, their common conquest. Not only do their com-pilations of laws prove that this custom arose aftertheir invasion of the Roman provinces, but it couldnot have arisen before; for, as they had no private es-tates in land, there could be no dower. Indeed, theirfirst appearance on the banks of the Rhine was asfugitives seeking escape from more powerful tribes.*When, finally, they broke into the provinces, it wasstill by compulsion, being driven onwards by adversefortunes in the wars which seem always to have vexedthe regions whence they came.

The Normans seized upon a portion of France inthe ninth century, about four hundred years after thefirst invasion of the German tribes. They adoptedthe customs of the Franks in a great measure, andallowed the wife one third as her dower. Littleton,in his thirty-sixth section, has copied almost verbatimthe Ancien Coutumier: " Coutume est que la femequi a son mari mort, ait la tierce partie du fief autemps qu'il epousa."

All the tribes condemned marriage with an alien.In A. D. 370, the Emperors Valentinian and Valensprohibited, under the penalty of death, the marriageof citizens and barbarians. The rigor of this law was

A. D. 370, 406.

MARRIAGE.

afterwards so modified as to permit such marriageswith royal license. At length, however, Alaric be-came king of the Visigoths, and, assuming to him-self and his barbarians the name of Roman citizens,revived the law in all its severity. His code de-clares that a lawful marriage can be contracted onlybetween Roman citizens; - " Legitimee sunt nuptiT,si Romanus Romanam," etc.* Again, a Roman cit-izen cannot be in the power, as a ward, for instance,of homo peregrinw conditionis.t Indeed, the Brevia-rium only expresses the universal sentiment and cus-tom of the tribes. The full force of this prohibitioncan only be estimated by considering that in that age,and long afterwards, the conquerors and the con-quered had not amalgamated. They lived in thesame villages, upon adjoining farms; met daily andtraded together; were mutually indebted for the vari-ous services of civility and humanity that contiguityproduces; but marriage was impossible. + A want ofstatus, whether by reason of alienage or bondage, ren-dered marriage infamous.

CHAPTER XXV.

MARRIAGE.

IF a man seized of a fee in lands taketh an alien towife and dieth, she shall not be endowed. Marriage,therefore, does not communicate to an alien woman

* Epit. Gai, Lib. I. tit. 4. t Tit. 6. sec. 1.1 Savigny, ch. 3.

102

MARRIAGE.

all the rights that it does to a native freeborn woman.Now Coke states that the only three requisites toentitle a woman to dower are marriage, seizin, anddeath of the husband; yet though the alien womanis married, and her husband hath seizin and dies, sheshall not be endowed. It is clear, then, that themarriage meant is that between citizens. That thereis an important difference between the marriage ofcitizens and that of a citizen and alien is made verymanifest by this: that if a marriage be avoidable bydivorce in respect of consanguinity, yet if the husbanddie before divorce, the wife shall be endowed; forthis is legitimun matrimonium, quoad dotem. * Herewe see that an incestuous union, if not annulled inthe lifetime of the husband, is a legitimate marriagede facto, - not de jure, as to dower. But quoad do-tern, the alien woman did not contract even a marriagede facto. In England divorce is exclusively withinthe jurisdiction of the ecclesiastical courts, and inthe case above stated the death of the husband pre-vented a sentence of divorce, - death had anticipatedecclesiastical censure. Hence the judge returns acertificate of legitimurn matrintonium. But the deathof the husband absolutely debars the alien wife fromher claim of dower.

Bracton mentions the justum et legitimurn matri-monium, t but does not explain or define it. In-deed, our juridical writers afford us no assistance.However, marriages, as we have seen by the citationfrom Coke, may be de facto or de jure, and of coursethere is a difference between them. In both casesthe parties must be able, -willing and do consent.

t Lib. 1. fol. 6.* 1 Co. Litt. 658.

MARRIAGE.

These may be termed the requisites of the jus gentium.Oui system adds that of citizenship in every contractrelating to land. It is evident, then, that the legiti-mum matrimonium cannot be contracted de facto orde jure by an alien. For marriage in either casewould have conferred upon her a full participation inall the rights of the husband. That such was theresult of a legitimate marriage appears from the defi-nition of it in the canonical law : " Viri et mulierisconjunctio, individuam vitTe consuetudinem, cum di-vini et humani juris communicatione, continens." *

Furthermore, it is to be considered that, in the ear-lier ages of the Common Law, land was almost theonly species of property. To deny to the alien wife,therefore, any share of it, was a practical denial of allrights of property. Yet this was done by a systemwhich recognizes the right to dower as not only alegal and equitable, but also a moral right.t So thatthe law did not recognize her existence at all in anycivil or moral capacity. Moreover, dower was avow-edly allowed propter onera matrimonii et ad sustenta-tionem uxoris, - de facto or de jure. She, therefore,who was not entitled to it was not a wife.

It is to be observed that although aliens, male orfemale, have the capacity by the jus gentium to ac-quire lands, they are prevented by defect of polit-ical status. Being subject to the former, they mayby descent or purchase acquire that kind of propertyregulated by that law, personalty. Here, again, werecognize the principle of unity and the correspond-ence of persons and property.

The legitimum matrinionium of the Common Law

* 4 Reeves, 52. t 2 P. W. 701.

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MARRIAGE.

is identical with the connubiun of the Civil. Thatcould not take place between slaves, - nor a slaveand free person, - nor, except by license, between thealien and a citizen.* Such, too, is the Common Lawin regard to the first two instances. And as to thelast, we learn that, by a special act of Parliament, allwomen aliens who from thenceforth should be mar-ried to Englishmen by license of the king might de-mand dower. t Connubium was also termed justunaut legitimum matrimonium, -justee nuptie, - incontradistinction to contubernium. The latter wasnot regarded as mere concubinage. It differed fromconnubiurn in this respect, that it conferred upon thewife no political equality with the husband, nor anyparticipation in his religious observances or civilrights. On the other hand, connubium is exactly de-fined by the canonical definition of marriage. It waspeculiar to citizens. "Connubium inter cives; intercivem autem et peregrin,' conditionis hominem autservilis non est connubium sed contubernium." IThe maxim of the Common Law, "Consensus nonconcubitus facit matrimonium," was received as trueonly in reference to this species of marriage. § Butunder the influence of Christianity, although the dis-tinction between the civil contract and the sacramentwas not entirely obliterated, the Church consideredconsent as marriage between an alien and a citizen.

As the connubium was peculiar to citizens, so wasthe marriage ceremony of a corresponding character.There were three kinds of nuptial ceremonies, and two

Fuss. Rom. A. Sec. 82. t 1 Co. Litt. 661, note 15.Gaius, 1.67.

§ Cod. Theod. III. 16. 1; 2 Comm. Code Alaric.

MARRIAGE.

of them, usus and confarreatio, have some resemblanceor analogy to the practices of modern times. Theusus was where the wife domiciled with her husbandfor the space of a year, without being absent for threenights. The other, coi firreatio, was the most solemn.The marriage was contracted in the presence of thefather or guardian and of witnesses, before the altar,and accompanied with a sacrifice by a priest. Bythis form the wife became subject to the power of herhusband, in manur veniebat.* Hence the rule thathe acquires the property of the wife, - "quam inmanum ut uxorem receperimus, ejus res ad nos tran-seunt." Its coincidence in form and consequenceswith our mode of contracting lawful marriage is re-markable. In the early times of the republic all cit-izens and priests used it alone. When, however,Grecian manners had corrupted Rome, this, withmany other ancient customs that had, fortunately forus, previously been adopted by the Germans, fell intodesuetude.

We apprehend, therefore, that an alien womancould not contract with a citizen justum et legitimummatrimonium either by the Civil or Common Law.Nor, indeed, by the canonical law, unless we sup-pose that, by the phrase humani juris, only naturallaw is intended. That may be the correct view, as itis derived from the Justinian law, and in his age citi-zenship and humanity were coincident. The jus gen-tium was the law of the Empire.

* Gaius, 2. 98, 109.

106

CONVEYANCES.

CHAPTER XXVI.

CONVEYANCES.

THERE existed in the feudal law, as we have seen,

a correspondence of persons and property, the resultof the attribution of sovereignty to the landed pro-prietor. The Germans, says Savigny,* had a speciesof perfect property like the dominium ex jure quiri-tium of the Romans. Of course he means that inthe Middle Ages, after their conquests, they had suchproperty, for before that time, as has been frequentlyobserved, they had no private estates in land. Itcould be held only by citizens. "Aut enim ex jurequiritium unusquisque dominus erat aut non intelli-gebatur dominus." The ennobling quality of citizen-ship was his right to hold it. It is not surprising,therefore, that citizens should have peculiar modes oftransferring this perfect property. The Common Lawhad only three original kinds of conveyance, - feoff-ment, exchange, and partition. Exchange is, in fact,two conveyances, and might therefore be properly re-moved from the class of original conveyances. Ourremarks on the subject of feoffment are equally ap-plicable to exchange.

Feoffment was known to the Romans and Gallo-Romans under the name of cessio in jure. The lat-ter was employed to transfer, not only lands andthings savoring of realty, but also slaves. Gaiusgives the most precise directions for the mode in

I. 134.

1071

CONVEYANCES.

which it should be made. "In jure cessio hoc modofit; apud magistratum populi Romani velut Prwtoremvel apud preesidem provincim is cui res in jure cedi-tur rem tenens ita dicit. Ilunc ego (hominem, fun-dum) ex jure quiritium meum aio,- deinde postquamhic vindicaverit, prwtor interrogat eum qui cedit ancontra vindicet. Quo negante aut tacente tunc eiqui vindicaverit, earn rem addicit." This is the ex-act method in which a feoffment at Common Law wasmade. It was executed in open court, - the demand-ant or grantee claiming a piece of land, the defendantor grantor by agreement assenting or being silent,and the magistrate giving judgment for the demand-ant. The memorial which was made of the trans-fer was termed transactio,* and had the authority ofres judicata, for every person who could claim anyinterest in the land was one of the pares curie, andin apprehension of law was present at the time thefeoffinent was made. His silence was consent. Hencethe consequences of this mode of conveyance, whichdestroys all contingent estates, limitations, and condi-tions.

When the feoffment was executed in a court ofrecord it was termed a Fine. That the feoffment wasused to transfer incorporeal rights as well as lands isshown by this circumstance: that, in a suit for anadvowson, the demandant used the words of Gaiusabove cited. Mr. Reeves has given a precedent ofsuch a declaration.t

Partition by decree of a court, or adjudicatio, wasanother species of conveyance, peculiar to citizens.The action, "que discitur familie heriscundw locum

108

* Glan. fol. 61. t Vol. 1. p. 137.

CONVEYANCES.

habet inter eos qui communem hwereditatem, &c., etinter cohieredes ubi agitur de proparte sororum velinter alios ubi res inter partes et cohamredes dividi de-beat," &c.* The Roman Law had also an action decommuni dividundo, which differed so little from theformer, familie heriscundce, that it was thought bythe compilers of the Digest unnecessary to treat ofthem separately. "Adeo affines sunt, ut de his simulagere necessalium." t Coke in the above extractdoes not notice this distinction, and treats these twoactions as one. The Digest explains that the actiofamiliw is "actio quee cohwredi adversus coheredesdatur ut dividatur hereditatem. Actio autem com-muni dividundo est actio que inter eos qui quascunqueres preter hereditatem communes ac indivisos habeatdatur ut ille res inter eos dividantur." At CommonLaw, as in the Civil, the actio farnilice is exclusivelyapplicable to coparceners or coheirs. They derivetheir name from the fact that they may, whilst ten-ants in common and joint tenants cannot at Com-mon Law, be compelled to make partition. I Theword heriscundce is a corruption of the word ercendo,- the ancient form of coercendo, from coerceo, to com-pel. Gaius states that this action was derived fromthe law of the Twelve Tables, "de hwreditatibus etde tutelis." §

The Common and Civil Law continue in all theconsequences of this mode of partition to be identical.Thus, there must be equality of partition, - eachwarrants the share of the other. Where the propertyis indivisible it is given to one, subject to the pay-

* 1 Co. Litt. 783. t Vol. IV. p. 534, Poth. ed.

4 1 Co. Litt. 783, 869, 911. § Dig. I. 421.

10

109

POSSESSION.

ment to the other of the value of his share.* In likemanner, both systems recognize partition by lot andarbitrament. Littleton mentions that other incidentof partition known as Hotchpot. The Common Lawconfined it to land given in frank marriage. In theCivil Law it comprehended every advancement of thefather to his child, and was known as the collatio bo-norum. Domat discusses the whole subject with hisusual ability and learning.t

CHAPTER XXVII.

POSSESSION.

"To suppose a state of man," says ChancellorKent, "prior to the existence of any notions ofseparate property, when all things were common,and when men throughout the world lived withoutlaw or government, in innocence and simplicity, isquite fanciful, if it be not altogether a dream ofthe imagination." + The learned author then goeson to state, that occupancy is the natural and orig-inal method of acquiring property in lands andmovables. Certainly the Common Law rejects allsuch notions, and holds property to be of positiveinstitution and not derived from any other source.Our system does not permit us to enter into the re-finements which the modern civilians discuss, as to

• 1 Co. Litt. 814, 826; Dig. 5. 24. 30.t Vol. II. p. 662. t 2 Com., Lect. 34.

110

POSSESSION.

the question whether occupation does or does notconfer a right. All lands belong either to the stateor an individual, and the occupant without title is atrespasser. The lapse of time will not bar the rem-edy of the former, but it will of the individual, andin the latter case only by virtue of positive legislation.Until the remedy is completely barred, the occupantis as much a trespasser as he was at the moment heentered upon the land. Moreover, the public lawinterferes not for the sake of the individual, but topreserve the public peace; the advantage to the occu-pant is incidental. There are questions growing outof the loss of remedy to the rightful owner, which, itis believed, have not yet been settled by judicial opin-ion. Thus, where a person by adverse possession candefend himself against the true owner, if he dies with-out heirs, shall the land escheat to the state, or doesit revert to the former rightful owner 1 Is the rightto the land extinguished, or only the remedy for itsrecovery taken away, by the statutes of limitation ?In the analogous case of a debt, although the remedymay be barred, yet the right to the money, theconsideration, still exists so far that a new promisewill revive the right of action. There are numerousother cases in which the same rule is admitted. Aprincipal difficulty in the way of considering the rightas unextinguished is that interpretation of the stat-utes of limitation concerning lands, which makesthem, not only means of defence, but of acquisition.But that view is founded upon the assumption thatthere is a law of nature which justifies man in occu-pying lands within the territory of an establishedstate. It is a law, however, that is not toleratedwhere the public is concerned.

POSSESSION.

The Civil Law recognized three kinds of occupa-tion, - that with just title, that with a supposed justtitle, and, lastly, mere tortious occupation. By thatsystem these three classes had appropriate and spe-cific remedies. And the division is manifestly notwithout some show of reason. But the Common Lawnotices only the first and last of them. The wordpossession is used by our legal writers to express, notonly the occupation of a rightful owner, but also thatof a wrong-doer, -the pedis possessor. But it isapprehended that it is properly applicable only to theformer, and certainly has that grammatical sense.The possessor, by whom is meant the rightful owner,has, - 1. A right of property; 2. Occupation by him-self, or his agents or tenants. To acquire the first,contract is necessary; to acquire the second, investi-ture or livery. Livery is continually confounded withseizin by writers, but they differ as much as causeand effect; it is by livery that seizin is obtained.*The possession of a feud is seizin, - possession issynonymous with seizin. It is in this sense thatBritton states that a frank tenement is the possessionof a feud.t

The right of property, together with actual occu-pation, was not sufficient to make a frank tenement;investiture also was indispensable. Investiture wasan act of sovereignty, whether it concerned the crea-tion of a principality, a title of honor, or a tenancyin fee simple. It was the solemn and public deliveryof the land, an approval of the contract by the sov-ereign, whether king or lord, in the presence of thepeers of the person to whom it was granted. Hence,

112

* I Cruise, 63. t C. 32.

POSSESSION.

if a person having acquired the right of property en-tered upon the land without investiture, he was atrespasser. His entry might be clandestina, clam,secretly, and the remedy was, as Bracton states, * awrit of intrusion, which might be purchased whenone ratione alicujus chartce entered without livery.The Civil Law was in this respect identical with theCommon Law. Bracton uses the very words of thatsystem. Domat states, that if a person who had ac-quired a title entered upon the land clandestinely,that is, without the knowledge of the person by whomopposition might be made, he was a wrong-doer.t

It is not unimportant now to have a correct knowl-edge of these principles. For although the solemnform of investiture is no longer observed, yet the sub-stance of it still remains. Inattention to them willcertainly lead into error. We will show this, andat the same time elucidate some of the leading rulesof the law of descents. Mr. Reeves, in his History ofthe Common Law, + a work of considerable author-ity, states that seizin was merely possession, meaningthereby occupation. So that a tortious occupier hadpossession or seizin. Nothing can be more incorrectthan this statement; feudal history and judicial au-thority contradict it. 1I Again he states, "that an-other (possession) was a precarious and clandestinepossession attended with violence." Passing by thecontradiction of a clandestine possession attended byviolence, he plainly confuses three different kinds ofoccupation, the precarious, the clandestine, and theviolent, -precaria, clam, vi et armis. The last two,

Lib. 4, fol. 160. t Lib. 3, tit. 7, s. 12. 1 Vol. I. p. 177.Bracton, fol. 38, 160 ; 1 Burr. 107 ; 1 Cruise, 12.

10*

113

POSSESSION.

moreover, are acquired against the consent, and thefirst with the permission, of the true owner. " Itemest quwdam possessio precaria ut si quis concesseritalicui habitationem," &c.* To this class originallybelonged, as we have seen, tenants for years, at will,and by sufferance. It followed necessarily from thiserror, that Mr. Reeves should not understand, notonly the rules, but the history, of the Common Law.

Another illustration of the consequence of neg-lecting the fundamental principles of the CommonLaw will be found in the criticism of Mr. Stephensin the explanation given by Mr. Blackstone of themaxim, "Non jus sed seisina facit stipitem." Theformer remarks that the solution of the latter is un-satisfactory. The passage of Blackstone is in thesewords: "We must also remember that no person canproperly be such an ancestor as that an inheritanceof lands and tenements can be derived from himunless he hath actual seizin of such lands, either byhis own entry," &c. Mr. Stephens says that theorigin of this rule has never been satisfactorily traced,and that, though Blackstone's explanation may suf-ficiently show why the descent was not derived ex-cept from a person who had obtained actual seizin,yet it does not show why the person seized was tobe propositus or root of the descent in preference toa purchaser who has obtained actual seizin. Forinstance, suppose this case: A dies seized, leavingB his heir; now if B dies without having obtainedseizin, the heir of A, and not of B, will inherit theestate. Here B, being next in blood, might obtainseizin, but, failing to do so, he does not become the

* Bracton, Lib. 2, fol. 39.

114

POSSESSION.

propositus. If to this case we add another element,and suppose that B, in his lifetime, conveyed hisright to a bon6 fide purchaser, who enters into actualoccupation, and then B dies, never having had seizin,Mr. Stephens informs us that the heir of A has theright to enter and eject the purchaser, and that thereason of this is unexplainable by himself or Mr.Blackstone.

The difficulty in the solution of the question con-sists solely in this, that, like Mr. Reeves, they con-found scizin with actual occupation. Actual seizinis their phrase. But seizin consists of three things,the right of property, actual occupation, and theconsent of the lord.* When a person has seizin inthis sense, he is the propositus. The purchaser inthe case put had the right, the actual occupation,but not investiture; and without the latter, occupa-tion with right did not constitute a good title. Inthe lainguage of the maxim, "Non jus sed seisinafacet stipitem." For example, suppose the case of atenant who conveys his feud to another; althoughthis contract was obligatory between them, the pur-chaser could not enter without the consent of thelord under whom the tenant held. Again, in thesame way, and no other, is to be explained the max-im, "Possessio fratris de feodo simplici, facet sororemhmeredem." It is only necessary to observe that thephrase possessio de feodo simplici is a paraphrase ofthe word seisina. Now upon these two maximsnearly the whole Common Law of descents depends.Mr. Brown, in his work on the leading maxims ofthe law, mentions only one other on this branch,

* 1 Cruise, 41.

POSSESSION.

"Iltereditas non ascendit." This implies the exist-ence of the first that we have noticed, and is onlyindicative of the person who may demand seizin.Misapprehension, therefore, of the true reasons ofthese maxims cannot but prevent satisfactory expla-nations of questions of law. " The reason of the lawis the life of the law; for though a man can tell thelaw, yet, if he know not the reasons thereof, he soonshall forget his superficial knowledge. But when hefindeth the right reason of the law ..... this willnot only serve him for the understanding of the par-ticular case, but of many others."

Investiture did not confer jurisdiction. The lawattributed jurisdiction to property, and that withoutthe intervention either of the donor or the donee.The omission to distinguish between this attributeand the investiture has conduced to, if it has notaltogether produced, the confusion which we haveheretofore noticed as existing in the use of the wordfee. After the lord had created a limited estate, hestill retained jurisdiction; and if we suppose that thetenant of the limited estate made a subinfeudation, healso had jurisdiction over his sub-tenant. Thus, inregular succession from the sovereign to the lowestbaron, jurisdiction belonged to the donor. Everyfeud was a miniature copy of the state.

116

RETROSPECT.

CHAPTER XXVIII.

RETROSPECT.

THE inquiry which we have made has exhibitedthe fact that the Common Law in all its parts,political, civil, and social, rests upon the principleof the attribution of sovereignty or political powerto the proprietors of lands. They alone possessed avoice in the government, - the right of representa-tion, of imposing taxes, of holding high places. Thenon-landholder was impotent. Time has greatlymodified this law, even in England; but property isstill there the source of power. In this countrymuch has already been done to take away all directinfluence from property; its indirect influence, inthe shape of corruption, must continue, and historyteaches us that it will increase, as population be-comes more dense. The utility of this change, fromthe direct to the indirect, the wisdom of reversingthe Common Law rule of attributing power to landedproperty, are questions without the scope of thepresent inquiry. But it may be observed that, atthe bottom, they really resolve themselves into thequestion of the best form of government. A greatstatesman, lately deceased, has stated with greatclearness and force the arguments in favor of theconcurrent majority,-the union of numbers andtaxation,- power and property. His disquisitionsare not, in this respect, novel in theory, but old, andapproved by the experience of a great and happyand highly civilized people. But it may, neverthe-

117

RETROSPECT.

less, be utterly inconsistent with the very differentform of government under which we live. Right orwrong, it does present for our consideration thegravest question which can employ the thoughts ofany people.

It is also to be observed, that in proportion as thisprinciple has ceased to be practically operative inthe law, will the legal system of these States differfrom the ancient Common Law. We may continueto term it the Common Law after the attribution ofjurisdiction to property is no longer rememberedexcept by antiquarians, but it will not be the Com-mon Law. A new system, having a different basis,tendency, nature, and results, will grow up; and ifit is cultivated with the aid of English books whichrecognize as a fundamental principle what is rejectedby us, our system must be bent from its natural ten-dency, and so be deformed. That American law mayperhaps be better calculated than its original to pro-tect man in the development of his moral and mentalqualities. Under its shadow he may enjoy, in largerproportion than his ancestors, those blessings whichgood laws and good government defend, but do notcreate. But these are not certain results. Even theadvocates of human perfectibility do not contend thatan entire departure from the experience of the pastis either desirable in itself or proper to attain theirpromised condition of perfection. They teach thepossibility of human development reaching perfec-tion, not the necessity of complete revolution, eitherin public or private law.

Moreover, the private law must, in a greater orless degree, be assimilated to the public. "At jusprivatum sub tutela juris publici," says Lord Bacon.

RETROSPECT.

Then it is not less a momentous question to individ-uals, *What will be the consequence to private prop-erty of the recognition of the principle that politicalpower does not belong to property ? Some boldtheorists have already announced the consequences;and, admitting it to be true that numbers, the major-ity, are the rightful owners of the power of the state,it will be difficult to refute the inference that theymay dispose of the whole state, and therefore of everypart of it. Power is human will, - applied to thingsit creates property, and has the masterdom and dispo-sition of it. Why, then, should the rightful ownersof the power, the life, of the state, not participatein the property which sustains that life? Whyshould the state not feed upon the property of thestate ? All men are equal, - one generation cannotbind another, - governments may be changed atpleasure, -the majority can do no wrong. Theseare principles which seem not uninteresting to thepossessors of property. It is possible that the fun-damental maxim of the Common Law is unjust tomankind. Certainly the architects of it did notintrust the preservation of property to those whomight have an interest in its destruction.

120 THE TENDENCY OF THE AMERICAN LAW.

CHAPTER XXIX.

THE TENDENCY OF THE AMERICAN LAW.

Tm- British Colonies in North America wereconnected together by a common allegiance to onecrown, and in reference to it they were one people.Their internal condition also tended towards unity.From their first settlement they possessed the man-ners, knowledge, and refined modes of thought whichbelong to a highly improved state of civilization.They knew no barbarous age in which the germs oftheir institutions originated. They had broughtwith them from the mother country the general prin-ciples of free government and the leading maxims ofher jurisprudence. They all adopted them, with suchmodifications as a change of country required. Nodissimilarities existed or grew up among them, suchas distinguish the Scotch or Irish or Welsh from theEnglish. The inhabitants were almost altogetheralike, with some shades of difference in matters of re-ligion; but sectarian dispute had never been inflamedinto civil strife. Hence, when they threw off their po-litical allegiance, the Puritan and his antagonist, theEpiscopalian, - the Roman Catholic and the Hugue-not fugitive from Roman Catholic power, - freelyand voluntarily pledged to each other their lives andsacred honor to accomplish a revolution that shouldestablish a free government, which, whilst it toleratedevery form, denied, what each had aimed to attain,superiority to any form, of sectarianism. This factalone proves incontestably, that in heart, customs,

THE TENDENCY OF THE AMERICAN LAW. 121

laws, institutions, and political principles, the inhab-itants of the provinces were one people.

The Articles of Confederation, therefore, had nosuch difficult task to perform as had the laws ofthe Middle Ages, or of Edward the Confessor, - toblend diverse races, who had never before stood face toface but as foes, into one harmonious people. Therevolt of the Colonies disturbed, but did not destroy,the internal governments and established laws ofthe States. The Articles supplied partially the wantof a common political tie. And when experience ledto their abandonment, it was not because the internal,but the external, relations of the States required it.Undoubtedly, as they operated only upon the States intheir collective capacity, and could not directly affectthe people, they created a government weak at homeand abroad. In legal formula, it may be said thatthe fiction of the unity of the federal governmenthad for its basis the fiction of the unities of eachState. This was the defect in the Confederation of1781. The ninth article, which contains all the pro-visions for the settlement of questions between theStates and between individuals, makes no alterationsin the private laws of the States. These were un-changed.

The Constitution of 1787, which was intended tocorrect the defects of the Articles of Confederation,and to form a more perfect union, invests the generalgovernment with jurisdiction over the States, and incertain cases over the people of the States. But itdoes not, nor was it its design to, alter the existingprivate laws of the state further than was necessary topreserve consistency between the public and the pri-vate law. The Constitution is in fact the great stat-

11

122 THE TENDENCY OF THE AMERICAN LAW.

ute of each State; an essential part of its private law,and nearly the whole of its public law. It is the su-preme law, but not the fundamental law, in the senseof fons publici privatique juris. Its enactment pro-duced less change in the laws of a State, than MagnaCharta did iii the Common Law. Apart from politi-cal considerations, the questions reserved for the ex-clusive cognizance of the courts of the United Stateswere all within the competency, and might have beenleft to the decision, of the State courts. But the dis-tinction between exclusive and concurrent jurisdic-tion was made, and the cases falling under eitherhead may be ascertained, as has been already sug-gested, by reference to the ends and means of accom-plishing them.

The direct influence of the Constitution, as a publicstatute, upon the laws of the several States, has beenmuch less than its indirect. The Common Law wasrecognized as the law of the land, but modified tosuit the circumstances of the people of the Colonies.The courts, however, untrammelled by local and cus-tomary rules, which were venerable only for their an-tiquity, or which by prescription had become prop-erty, were at liberty, and often were compelled, to re-investigate questions already decided in England, andfor the purposes of inquiry to resort to foreign laws,universal reason, and colonial utility. Many, per-haps most, of the more eminent lawyers of the Colo-nies, down to the Revolution, were educated in Eng-land, and no doubt studied the Common Law, withthe improvements which Lord Mansfield was thenintroducing. "It may be observed," says ChancellorKent," and with greater width of truth of this coun-try than of England, that a very large proportion of

THE TENDENCY OF THE AMERICAN LAW. 123

the matter contained in the old reporters prior to theEnglish Revolution has been superseded, and is nowcast into the shade by the improvements of moderntimes; by the cultivation of maritime jurisdiction;by the growing value and variety of personal prop-erty; by the spirit of commerce, and the enlargementof equity jurisdiction; by the introduction of moreliberal and enlightened views of public policy, and,in short, by the study and influence of the CivilLaw." * The same causes, which were thus both inEngland and in the Colonies producing great altera-tions in the Common Law, received new energy andimpetus from the Constitution. The law of the Col-onies already conformed to a much greater extentthan that of England to the jus gentium. Now, ashas been seen, the principle of the Common Lawwhich attributes jurisdiction to property, and deniesit to those who are not landlords, renders the statea close corporation. In England the principle hadbeen so modified as to attribute a share of jurisdic-tion to every native, but the alien, although encour-aged to visit the kingdom for the purposes of com-merce, found so many difficulties in the way of ob-taining the privilege of citizenship, that he rarelyasked for it. Their total exclusion practically pre-served something of the spirit of municipalism in thelaw, - the state was still a corporation. The rightof membership could be obtained only with difficulty,and generally only on public considerations.

But the Colonists had so little of the pride of citi-zenship in them, that they regarded England as theirhome, and America as a sort of decent asylum for the

* I. 453,454.

124 THE TENDENCY OF THE AMERICAN LAW.

poor. Emigration was universally encouraged, andlands granted without any previous probation. TheConstitution accorded with the sentiments of the peo-ple; it did not declare what should constitute citi-zenship, - it did not limit Congress in its power toenact naturalization laws. Hence we have natural-ized citizens who have become such as individuals,after a probation of five years supposed to be passedin learning to love and admire our institutions, andwe have naturalized citizens who have become suchas nations, having for our laws and institutions onlysuch love as is felt by the conquered for the conquer-or. When Congress, therefore, limited the probation-ary period to ten, seven, or five years, a mere pointof time in the life of a nation, and also made citizen-ship depend entirely upon the pleasure of the aliento take it, citizenship ceased to be a privilege. This,with many other proximate causes, but all ultimatelyreferable to the severance of jurisdiction from prop-erty, has carried the public and private law onwardtowards the entire abandonment of municipalism.The political consequences of the extension of citi-zenship to all who will become inhabitants of theseStates, are not within our consideration. But historyis not silent, and furnishes thoughts which deserve tobe meditated upon.

In addition to these external and political causesof change in the Common Law, there are others of aninternal nature. Its history presents to that of theCivil Law this contrast, that the Common Law isconfined to the Anglo-Norman race. Whilst theyspread their dominion over the face of the earth, theydo not spread their municipal law. It is not the ar-dent desire of any of their conquered subjects to be

THE TENDENCY OF THE AMERICAN LAW.

governed by it. Their own people, as colonists, re-ject it. The inherent defect is its want of the powerof self-defence. Its municipalism is merely conserva-tism, and has no element of progress, - and with-out their union nothing moral can be permanent.Self-defence includes the power to be offensive, - todestroy for the purpose of self-preservation. But thisis not the case with the Common Law of England.It is modified by contact with other laws, but neverhas impressed upon any of them its peculiarities.Now this does not arise from any narrowness of theprinciples of the law of property, for these are nomore English than Roman or French. But from theperpetuation of the principle, that to property alonebelongs jurisdiction, -its political law. So, in thelike manner, all that was peculiar to Rome expiredwith the fall of the Republic, and that which wascommon to humanity, the law of nature, was per-petuated.

Another cause is, that the Common Law is emi-nently technical. In no other known system haveformulas so powerful an effect. Fictions of the laware all equitable, and approve themselves to our natu-ral reason; formulas are unmeaning except to thosewho have attained to "an artificial perfection of rea-son, gotten by long study, observation, and experi-ence." Thus, that an estate granted to a person withthe word heirs annexed should create in him an ab-solute inheritance, has no foundation in natural rea-son. Nor does this formula admit of accurate transla-tion into the common language of literature, - Latin.The -proof of this is given by Bracton : after stating alimitation to A, and hleredibus sui corqoris, he informs

11 *

126 THE TENDENCY OF THE AMERICAN LAW.

us that they take by descent "quamvis quibusdamvideatur quod ipsi feoffati fuerint cum parentibus;quod non est verum." * The reason of this opinionthat he condemns is plain. Those who thought thatthe heirs of the body took joint interests with theirparent gave the same meaning to these words, hcere-dibus sui cororis, that civilians give to sui heredes.The latter mean children, - lineal descendants, andso heirs of the body naturaliter, - and used in thatsense the children would take joint interests withtheir parents, as was decided in Wild's case. Theerror was in not perceiving that the limitation was aformula having a very different meaning from thatwhich the words convey according to their idiomaticuse. So the difference between the formula of a per-son dying leaving no issue, and leaving no issue liv-ing at the time of his death, is untranslatable, andeven to the well-educated scholar of Continental Eu-rope unintelligible. It is manifest that formulas donot commend themselves to the natural reason ofmankind, and therefore cannot become the propertyof humanity. They are the mere husks of the law.But as the peculiarities of the Common Law of realestate are formulas, they too are destined to continueexceptional, if they do not disappear even from thatsystem.

Lib. 2, fol. 18.

CONCLUSION.

CHAPTER XXX.

CON CLUSION,

THE analysis of the fundamental principles of theCommon Law has been made. It has been shownthat our system is not "a shapeless mass of mate-rials," as has been supposed by very eminent Euro-pean jurists; and that there is a principle pervadingit uniting together all parts of society, and controllingthe state and the family, the beginning and the endof humanity; -that the same bond which unitesmany in society unites two in marriage; - that inwhatever light we view these, the chief relations ofhuman existence, comprehending omnes omnium cha-ritates, it may be said with the utmost truth and ac-curacy, both of society and of marriage, that each isomnis vit3 consortium, divini humanique juris commu-nicatio.

Our exposition has traced the rules of the law ofreal estate to the mixed law of the Middle Ages.Occasion has also been taken to exhibit some of themore important analogies between the Common andCivil Law, and to indicate the particular instancesin which courts of justice and law writers wereobliged to adopt such rules of the latter as were notinconsistent with the political principles of the former.The affinities of the two systems would perhaps jus-tify a more extended examination, but it is sufficientto say that it is a matter of well-founded surprisethat the Common Law judges have so frequently re-sorted to the Civil, and that it has been tolerated to

127

CONCLUSION.

so great a degree. For the hostility to the introduc-tion of the Civil as the coitus juris of England wasmost natural and proper, and the attempt by theclergy exhibited, not only their ambition, but theirignorance of the Civil Law and the then existingcondition of political affairs. As the Normans hadno law suited to their condition at the time of theirinvasion of France, they readily adopted the mixedlaw. But it was far different three hundred yearsafterwards, when a portion of them, having estab-lished laws and a well-ordered government, tookpossession of England. Then they had a code suitedto their new relations, and therefore with ancestralpride adhered to it. The change that was desirable,and that which they attempted, was to recofncile theirconquered subjects to the feudal law which theythemselves could not abandon without ruin. Onlythe'slow progress of time could extinguish the hatredof the Saxon to the Norman. But the latter had nonational antagonism to the Civil Law; on the con-trary, their Continental brethren received it, as theirpredecessors had done, as a subsidiary law to explainand interpret the mixed law. And so thoroughlywere the Normans changed in their manners, laws,and language by their conquest of Normandy, thatthey "were regarded both by Saxons and Danes asnot only a different nation, but actually a differentrace. The historians of Denmark speak of the Nor-man conquerors of England as a people of Roman orLatin race, and deplore the conquest as a triumphof the Roman blood over the Teutonic." * All thetribes that acquired permanent settlements were alike

* Thucydides, by Arnold, Vol. II. p. 55, note.

CONCLUSION.

transformed, and adopted the Civil Law,- in thenorthern part of France as subsidiary, and in thesouthern part as the lex scripta. The conduct of theclergy, therefore, could lead only to failure. Theirignorance of the true spirit of the Civil Law wasequally manifest. No nation that has ever existed,no code that has ever been contrived, are so tolerantof national customs. The Pandects will furnish amultitude of passages in which it is enjoined uponprovincial rulers to respect local customs, and tomaintain them with their authority, unless politicalinterests demanded their abrogation. It was uponthis very ground that the Northern barbarians soreadily adopted it. The alternative view was not pre-sented to them, to abandon their own customs andaccept the Roman laws. It was in a similar spiritthat the Conqueror agreed to tolerate the Saxon laws,whilst he enforced his own code. When, therefore,the barons rejected the proposition of the clergy toabandon their native customs, they responded notonly in the language, but in the spirit, of the Pan-dects. At the same time, our juridical history showsthat courts and writers daily and openly appealedto that code to aid them in the interpretation of theirlaws.

Finally, I have endeavored to show that our sys-tem of jurisprudence consists of many subordinateparts, all of which are connected by beautiful depen-dencies, and each of them, as I have fully persuadedmyself, is reducible to a few plain elements, that willcommend themselves to our natural reason, or bejustified by the history and situation of our politicalancestors. But if the law be merely an unconnected

CONCLUSION.

series of decisions and statutes, its use may remain,though its dignity as a science be lost. Reason must

yield its supremacy to memory, and the cantor formu-

larum is the greatest of lawyers.

THE END.