THE THEORY OF THE COMMON LAW
JAMES M. WALKER
CHARLESTON, S. C.
LITTLE, BROWN AND COMPANY
Introduction - Part 1 | Part 2
The State | Civil Person | Remainders | Fee | Scintilla Juris
Contingent Remainders | Conditions | Relations | Warranty | Heir
Diversity of Rights | Joint Tenancy | Jus Accrescendi | Usufructs | Executory Interests
Political Status | Judicial Office | Courts | Citizenship | Aliens
Guardianship | Courtesy | Dower | Dower at Common Law | Marriage
Conveyances | Possession | Retrospect | The Tendency of the American Law | Conclusion
INTRODUCTION - PART 1
The science of law, in its most comprehensive sense, is the body of rules of human conduct which are universally recognized as obligatory. In a more limited view, it is the body of rules which constitute the code of a particular state. But in either sense, the basis of every system must be truth. The universal is true, because it is consistent with the nature of man; the municipal is true, because it is consistent with the nature of the people subject to it. The truth of the municipal is not, however, the antagonist of the truth of the universal. For a law of a particular state may also be a law of humanity, or it may , as the law of aliens, be the law of every nation, without being the law of nature. The municipal differs from the universal only as a particular differs from a general truth.
A body of law implies necessarily internal concordance or harmony of its rules. This agreement renders the multitude of special rules a law, a unity. They are together one law; thus we say, the law of England, the law of nations, the law of nature. A law signifies the relation of man to man; a body of laws, the relation of nation to nation; the universal law, the relation of man to God. When a law has been adopted by a people from the universal, than that law, the relation of man to man, is the true relation between man and man in the municipal and universal, is a special and general truth. That which is the true relation between man and man is the just relation, or justice, absolute as to the universal, relative as to the municipal. So, also, a law expresses not only the relation of man to man, but at the same time his relation to the supreme power. In like manner, a body of laws to the law of every other nation and to the supreme power the relation of the true and just; else those living according to that law will be enemies of mankind and the supreme power that governs them.
As the law of each nation differs in important respects from that of every other, each unit is different in 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 to every rule, and around which all may harmoniously be grouped. That idea will control the law in every part, and in all its modes of expression. It will determine the tendency of each system, and stamp upon is its own peculiar characteristics. That idea is the life of the law, and animates every member of the body politic. It begins with the birth, lives in the history, and dies in the last scene of the national drama. It must be found in every relation of man to man and society. The men of high and men of low degree, each family and each child, all property, history, and literature, must bear its indelible impression. That idea is, in short, the eminent truth of that people; and exposition of it in its application to law is the philosophy of law.
The philosophical element of the law must be equally applicable to the public and private law of a state; else there would not be the law, but the laws, of England. In other words, one people would be subject to two coequal and discordant systems. The truth being than the same in both branches, the public and the private, its discovery in one is conclusive of its existence on the other branch. Our inquiry leads us to consider whether there exists in the Common Law an idea with the consequences which we have specified. How does that idea express itself in that system? What are its effects upon the people, its influence upon other systems, its power in directing the movements of the mind of humanity. These questions are within the province of the philosophical statesman. Our task is the humble one of establishing the existence of such an idea in the Common Law and exhibiting its control over the rules of property peculiar to that system.
An indispensable instrument in the investigation of all scientific truth is method. Science cannot exist without it. Now our juridical writers altogether neglect it. For although the law is a collection of principles, they treat of it, not in reference to principles, the abstract, but in reference to things, the concrete. They neither descend from general to particular, the ordinary mode of imparting scientific information, nor ascend from particulars to generals, the ordinary method of discovering truth. This is the more remarkable, inasmuch as the science of the law has been not ineptly termed one of the exact sciences. The geometric or demonstrative method has been applied with remarkable success to the solution of questions of law. And that it deserves to rank as a science almost in the same class with geometry can easily be made apparent. Its terms are free from ambiguity, its first principles simple and obvious, the subjects with which it isconversant are wholly independent of things in actual visible existence, and are capable of being accurately defined. Their properties and relations are immutable. In these respects of sciences have the same qualities. Our surprise is not lessened by the consideration, that, whilst other moral sciences have been discussed in every variety of method, it should have been altogether neglected in a science which of all others is the most intimately acquainted with human relations, by which man lives, moves, and has his being in society,which makes his home a temple and a fortress, that no impious hand can touch with impunity, no daring adversary assail with success. But its neglect is a fact now, and when Bacon pronounced this judgment upon his age: " Qui de legibusscripserunt omnes, vel tanquam philosophi, vel tanquam juris consulti argumentum illud tractaverunt. At que philosphi proponunt multa dictu pulchrased ab usu remota. Jurisconsulti autem .....placetis obonxii eteddicti.....tanquanm e vineulis scrmoeinantur."
It is in this respect that the Roman has so great advantage over the Common Law. The universal error of our juridical writers is in supposing that, even in those countries over which the Civil Law presides, it is valued chiefly for its doctrines. The reverse is the truth. "When," says Professor Mayer, on the subject of the use of Civil Law in Germany, " its provisions shall have ceased to have the force of law, its study will produce greater profit, and the peculiar method employed by the so-called jurists in treating the law will be better estimated and turned to practical account." Again he says, "It ought ever to be remembered, that, familiar as they (the Roman lawyers) were with all the culture of their times, they knew the law not as an aggregate of rules, but in its scientific unity, such as it was disclosed to them by its own history and the history of their nation. The legal literature of no other people can show a casuistry so thoroughly spiritual, where the matter of fact only seem designed to corporealize and exhibit the spirit. Hence, there is no better training of practitioners.
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INTRODUCTION - PART 2
Jurisprudence is the knowledge of laws, their reasons, and their sources. Knowledge of laws and their sources constitutes the history of the law. Knowledge of laws and their reasons constitutes the philosophy of law. Without some tincture of this philosophy none can be said to understand the law; "for though a man can tell the law, yet, if he know not the reason thereof, he shall soon forget his superficial knowledge." To discern these reasons, it is indispensable to study the history of the law. The latter furnishes forth the facts, and in them philosophy searches for their reasons. Philosophy does not create, is discovers the true relations of things.
The relation of man to man is expressed in the youth of nations in customs or usages, which embody the national ideas of justice, and in that way express the character of the people. For no custom can prevail in a nation which is repugnant to its sentiments of sense of justice. Manners are the law of a people at this stage of its progress. These are, then, parcel of the national mind; its moral rule, as well as the arbiter of public and private right. Morally they are the people. The Athenians uttered a universal truth, when, abandoning their territory to its invaders, they said that their country was their customs, and these they carried with them in their ships. Nations in all ages have sent forth colonies which voluntarily separated themselves from their places of nativity, but never from their customs. In fact, they cannot; it is a moral impossibility. They cannot separate themselves from themselves. Hence colonies have always transported their native customs to their foreign homes, and have preserved them so far as they could, consistent with the altered relations of external affairs. In regard to the Germans of the medieval ages, this is equally true. An erroneous inference from this general truth has, however, been made. Their conquest gave them large territories,which were partitioned between themselves and the conquered people. Each man thus became a landlord. But this was altogether a new relation for them, and to which their customs had no reference; for before they crossed the Rhine, private property in land was absolutely and totally unknown to them. Their customs concerned their rights as men, life, liberty, and property in chattels; and even of these they possessed little more than their wagons, cattle and arms. Until they had conquered the Roman world, they knew nothing of conveyances, much less of devises of lands, a refinement upon the right of alienation. Nullum testamentum, says Tacitus, their customs were unwritten, leges memoria sola et usu tenebant. After their conquest, they became subject voluntarily to the influence of the laws, and gave a ready obedience to the Christian pontificate of Rome. Their national characteristics disappeared, in a great measure, 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 distinguish even in the Salic and Riparian codes the native form the Roman element, that this task is still admitted by eminent German scholars to be as yet unaccomplished.
The fact that the Germans before their invasion had no law of real property, is of great consequence in our judicial history. Savigny has demonstrated that the codes of all the tribes consisted, in a great measure, of Roman law, and it has always been admitted that these were interpreted with the aid of that law. Hence the universal prevalence on the Continent of the Civil Law. The Norman customs, however, did not undergo so great modification. For, being the last of the invading tribes, bringing with them their native customs fresh and pure, they could not at once become Gallo-Romans. Nor,indeed, have they yet become so thoroughly imbued with the principles of the Civil Law as the Franks and Burgundians. The Anglo-Normans, insulated, and almost from the time of the conquest of England hostile to the Gallo-Romans, have the course been less deeply impressed with the mixed law of the Continent. But as the Normans had originally no native custom concerning land, they too, necessarily, when they became proprietors, adopted the only law of real estate of which they had any knowledge, the mixed Gallo-Roman law. The change from oral and traditionary to written laws is the beginning of legislation. Legislation is not the law, but the expression of the lawantecedently existing. The thought was already in the mind and heart of the people. This is a truth in the juridical history of the world. Legislation cannot be other than the authoritative utterance of the thought of a people.The cause of this change from tradition to legislation has always been political. Thus the Twelve Tables were compiled to remedy the diversity between races, the Patrician and Plebeian. "The state of affairs, " says Niebuhr, (Rome, Vol. II p.210) " was exactly like that which led to the framing of the statutes of modern Italy. When the German conquerors and the Romans had grown up together into one nation, with a common language and manners, the universal tendency of circumstances was to mould the two classes into civil communities with new rights, in which those previously separate should be blended. " Hence these mixed codes of Roman law and national customs. A similar condition of affairs led Alfred and Edward the Confessor to promulgate their codes. These historical instances prove that the change from tradition to legislation was produced, not only by a political, but by the same political cause. And each of these codes, except that of Edward, became, for the people subject to it, fons omnis publici, privatique juris.
The diversity of races, which the laws of Edward were intended to obliterate, arose in a new form after the conquest. William consented that the natives should be governed by their own laws; but at the same time published his code for the government of his followers. This state of affairs tended necessarily to perpetuate the diversity, by establishing two coordinate systems of laws; but he gave the administration of both to the Normans. Interest, contempt for a conquered race, ignorance of the native laws, and aknowledge of their own, combined to render the judges utterly regardless of the native laws. A long period elapsed before the races had blended; but the traces of the Anglo-Saxon upon the law were few and slight. Their customs perished with the people who cherished them, as congenial to their manners and constant memorials of their lost freedom. And whilst the native was becoming obsolete, a foreign code was being substituted by judicial legislation.
The next step in the juridical history of modern times is the promulgation of capitularies of statutes made by the sovereign alone. None of these are now referred to in England as authority, except Magna Charta of Henry the Third (A.D. 1225), two hundred years after the conquest. The antecedent capitularies are generally declaratory, and where remedial or amending, they have been directed to the correction of abuses in the administration of the jus corona. It is apprehended that they have had little influence in the formation of the Common Law. Although Bracton lived in the reign of Henry the Third, and wrote within a few years after Magna Charta was granted, he mentions it only passingly, and without attaching to it much importance. Indeed, until the Revolution, when Somers and his coadjutors sought justification of their ideas of popular rights in the law, Megna Charta was almost forgotten. And historically it is not true that the celebrated twenty-ninth chapter had for its purpose the extension of the power of the democratic element in the government. It was intended solely to confirm the owners of lands, liber homo, in the enjoyment of such rights as they had beforetime possessed. This statute, says Coke, was but a restitution of the Common Law, and his remark concurs with the truth of history. The English Revolution did, however, extend the basis of political organization, and increase the influence of the popular element. But it seems natural to the lawyer to discern in the past the exact prototype of the present, and it is certainly common to deny that the improvement of the law, public and private, is a change of the antecedent law. Development is with many not progress, and such desire the law to be immutable. The English Revolution made no change in the law of private property. In like manner, the American Revolution affected only the public law. The tenacity with which every branch of the great Germanic race maintains its primitive customs has always been remarked. The Normans and their descendants have adhered faithfully to their customs in relation to lands, which they adopted in the Middle Ages. Their law of real estate is altogether customary. No code nor statute establishes our system of real estate. Yet in the lapse of nine hundred years, diversified by every incident that can befall a people in prosperous or adverse fortune, advancing from comparative barbarism to the hight of civilization, changed dynasties, pendulating from the tyranny of the Tudors to the anarchy of the Bare bones Parliament, indoctissimum genus indoctissimirun hominum, not one principle of the law of real estate has been altered. The Justinian of the English law restored the customary law by the statute de donis, and the tyrannical Henry the Eighth attempted to lop off that foreign graft in the Common Law, uses. Legislation, with few exceptions, has been confined to the accidental, and has not touched the essentials of the Common Law. Thus, the statute of frauds merely establishes the kind of evidence necessary to prove contracts in certain cases. The statute of wills extends the special customary law to the whole realm. The Habeas Corpus act gave another remedy for illegal imprisonment. Nor has legislation altered in a single particular conveyances at Common Law, but has increased indirectly their number. So the family relations remain, with their incidents, as they were in the earliest periods.
This review shows that the Common Law presents for our investigation a continuity of doctrine, which binds the present to the past, a chain of rules unbroken by revolutions, and blurred by codification, in short, a body of original facts. Without the immutability of the Jewish law, it has been stable, amidst the changes of society. It has participated in great revolutions, without being a passing incident in the life of the nation. It is not an episode in the life, it is the life itself of the nation. It is stable, because its principles are founded upon truth; it is capable of amelioration, because that is of the nature of humanity. It must, then, have a philosophy.
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CHAPTER I - THE STATE
The State is a person, and possesses as its property one territory. As this one civil person consists of all the citizens, so its property consist of all the individual property of the citizens. It is una persona, unicumpatrimonium. This unity of person and property of the state is expressed by the Common Law in the maxim, that all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, in fee. The sovereign reserved the dominium and ultimate property in the lands, and the grantee acquired only the use and profits. Thus the right to the soil was separated from the right to the use and profits. In apprehension of law, the state holds the soil of the whole territory as one estate. This idea was not peculiar to the feudal law. It prevailed universally on the Continent, among the German tribes who conquered the Gallo-Roman provinces. Caesar states, that before their irruption into Gaul they had no private estates in land; "nequequisquam agri modum certum, aut fines proprios." The territory occupied by them belonged to the tribe, and was repartitioned annually to prevent even local attachments. In like manner Rome held the sovereignty over her conquered provinces. The possessors or tenants, whether Roman citizens or subjects, held their lands in bonis, as usufructs, and without that participation in political rights which enabled the citizen to hold lands within the proper territory of the city, ex jure quiritium. The latter, known as one of the resmancipi, corresponded to the legal estate of the Common Law, and was in the same sense distinguished from the usufruct. Thus Cicero applies the distinction, "ergo fructus est tuus, mancipium illius." Lueretius more eloquently and accurately says: " Vita mancipio nulli datur, oinnibus usui."
This idea of the unity of the territory, being common both to the Germans and Romans, was adopted as the basis of the treaties between them previous to the fifth century. Thus, in A.D. 268, the Franks received lands upon the banks of the Rhine, on condition of defending that frontier from barbarian invasion 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 defense. Such also was the tenure of the Salic territory in the early period of the Middle Ages, and for that reason transmissible only to male heirs. Therefore, whilst those tribes in amity with Rome had the use and profits of their lands, the sovereignty termed dominium populi Romani by Gaius and imperium by Justinian - indicative of the different forms of government - belonged to the civitas or state.
It would not be difficult to collect form history numerous other instances of the prevalence of this idea. Indeed, so generally has it been adopted as the foundation of political and territorial organization, that it is one of the points of similarity between the general outlines of theology and jurisprudence. Hence, too, the juris consult of antiquity - theologians, jurists, and philosophers at once - comprehended under the word Justice all the relations of man to man and to God. And therefore they defined jurisprudence to the divinarum atque humanarum rerum notitia, justi atqueinjusti scientia.
This idea being the basis of the political and territorial organization of the whole state, its effects must necessarily be discoverable, in a greater or less degree, in every part of the legal system of the state. It is not possible that any people should live under a public law which is antagonistical to the private law. The reasons are too palpable to require any elucidation. Therefore, in treating of the private law, altogether to discard consideration of the public, is to neglect that element by which the private law exists. For instance, trial by jury in private causes we value highly; but no one could imagine that it would be valuable in a despotism. The form might survive, but not the life, and it would probably be merely an instrument of oppression. We shall, however, no further notice the public law than is absolutely necessary for the exposition of the private. It will be found that in proportion as the state tends towards unity or centralization, as it is now generally termed, so are the people free or not; and in the same proportion is the security of their rights of property.
In the Common Law, as will hereafter be shown, the idea of the unity of person and of property is applied practically, and with controlling power, to every relation that can arise between the grantor and the grantee of lands, considered either as persons alone, or as persons in connection with property. Whatever may be the quantity or quality of an estate, into what number soever of parts it may be divided, however numerous may be the tenants, their relations depend upon this principle. They exist, as Bracton says, per juris unitatem. This unity is termed by Blackstone "a fiction of tenure," but, like all other legal facts, it will be found potential in the law, rigorous, and peremptory, admitting no contradiction and suffering no modification. It is the foundation, not only of the public political and territorial law, but of private property, of status, of family rights, of courts and their rules of procedure; in short, an exposition of it, as applied to the law of England, is the philosophy of the Common Law.
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CHAPTER II - CIVIL PERSON
The state is represented in the person of its chief magistrate, who is at the same time a member of it. Thus the king or president possesses two kinds of rights, a university of rights as a corporation, and individual rights as a man. As the former become more and more confounded with the latter, so government advances towards some form of monarchy. A bishop also is a sole corporation, but the man holding the office has also his individual rights. The word person neither according to its accurate meaning nor in law is identical with man. A man may possess at the same time different classes of rights. On the other hand, two or more men may form only one legal person, and have one estate, as partners or corporators. Upon this difference of rights between the person and the man, the individual and the partner, corporator, tenant in common, and joint tenant, depends the whole law of these several classes. The same person has perfect Power of alienation, of forming contracts, of disposing by last will and testament of his individual estate, but not of the corporate, nor of his own share in it, unless such power be expressed or implied in the contract by which the university of rights and duties is created. The same distinction divides all public from private property, and distinguishes the cases in which the corporation or civil person may sue from those in which the individual alone can be the party; although there are instances in which the injury complained of may, in reference to the difference of character, be such as to authorize the suit to be instituted either by the civil person or the individual, or by both. Thus, violence to the person may be punished either as a wrong to the state or to the individual.
The true meaning of the word person is also exemplified in the matter of contracts. It is said, generally, that all persons may contract; but that is not true in the sense that all human beings may contract. Thus, a married woman, an infant, a lunatic, cannot contract. Again, a slave of mature age, sound intellect, with the consent of his master, cannot make a contract binding on himself, although as an agent he may bind his master. These matters are important only as they serve clearly to show that the civil person may have rights distinct from those which he possesses as an individual; and that his rights or duties as an individual may consequently become opposed 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. Incase of a difference between them as to its use, the rights of the one as a partner, and his right as an individual owner of another moiety, are directly opposed. In order, therefore, in any case, to perceive the application of a rule of law, it must be considered whether the person or the individual, or both, in the possessor of the right. For it may be asserted as absolutely true, that the rights of the man are not recognized by that law which is termed the municipal. It recognized them only as they grow out of, or are consistent with, his character as a civil person. In other words, this is the distinction between the Common Law and the law of nature. Nor is this a fanciful distinction, inasmuch as the rudest tribes, as well as the most civilized nations, have always distinguished between the rights and duties of their members, and of those who were not members of the body politic. Even after the philosophical jurists of antiquity had polished and improved the jurisprudence of aristocratic republican Rome by the philosophy of the portico, Cicero, statesman, philosopher, and juris consult, exclaims with indignation against the confusion of rights of person that the age witnessed:"in urbem nostrum est infusa peregrinitas; nune vero etiam braccatis ettransalpinis nationibus ut nullum veteris leporis vestigium appareat."
The Common Law, as well as the Civil, recognizes as a person an unborn child, when is concerns its interests either as to life or property. "Qui inutero est perinde ac si in rebus humanis esset, custoditur, quotiens decommodis ipsius partus quaeritur." And both systems provide the same remedies to protect the child and those with whom its birth may interfere. In case of a limitation of the child to which a woman is now pregnant, if twins should be born, the Common Law gives the estate to the first-born; by our law, they would take moieties. Now, as these rights are acquired before the birth of the child or children, there is a double fiction; not only in considering the unborn as born, but in distinguishing under the Common Law the eldest from the youngest born. Whilst, therefore, the law regards the unborn as born, yet to transmit the estate, he must be born as a man, alive and capable of living.
The law does not presume the life of death of an individual; when his existence has been established, his death also must be proved. But the birth of an individual and the commencement of his character as a person do not necessarily concur. Thus, an alien of any age is not a person, in relation to a contract concerning lands, nor in any case is an infant; so a woman marrying before she attains her legal maturity may doe of old age without having become a person, On the other hand, a person may suffer civil death before physical death; totally, where he becomes a monk; partially, as a penalty for the commission of an infamous crime; and perpetually of temporarily, as in case of outlawry.
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CHAPTER III - REMAINDERS
The unity of estates is exhibited in its simplest form in the fee simple. But in order that its influence in the more subtitle portions of the law maybe made apparent, the doctrine of vested remainders will be considered. "it is a general rule," says Mr. Fearne, "that every reminder must vest, either during the particular estate, or else at the very moment of its determination. So that, if a lease be made to A for life, and after the death of A, and one day after, the land shall remain to B, this remainder of B is void." Why does the law inexorably demand that the remainders shall vest at the very instant of the determination of the preceding estate? Mr. Fearne states that "this rule was founded upon feudal principles, and was intended to avoid the inconveniences which might arise by admitting an interval when there should be no tenant of the freehold to do the services of the land, or answer to the stranger's praecipe, as well as to preserve an uninterrupted connection between the particular estate and the remainder, which, in the consideration of the law, are but several parts of the whole estate." The feudal principles to which Mr. Fearne refers seem to be those intended to prevent the inconveniences to the lord and the stranger, which would follow from the want of a tenant of the freehold. The explanation might be sufficient, if every remainder necessarily consumed the whole estate remaining after the determination of the preceding estate. Were there no reverter, reversion, or escheat, then, perhaps, the lord might suffer inconvenience. Moreover, when there was no tenant of the freehold able to render service to the lord, an infant, for example, the lord might enter and enjoy the profits of the land. The infant was in wardship. If there was no legal tenant, the land reverted to the donor. And in either case, the stranger had a person holding in his own right or in autre droit, to answer to his praecipe. Nor is the necessity of an uninterrupted connection between the particular estate and the remainder a sufficient explanation. It involves, in fact, a petitio principii. Why was it necessary that this connection should be uninterrupted, even for a moment? Upon what principle does the law declare that a remainder is void, if there be, as in the case above cited, the interval of a day between the particular estate and the remainder? It is manifest that the reason of the rule has no relation to the length of the interval, a moment is as destructive as a year. In the former case, a moment, the want of a tenant could not impose any inconvenience, either upon the lord or a stranger; yet it defeats the remainder as certainly as the interval of a year. The length of the interval was unimportant, and the inconvenience, therefore, was not the reason of the rule. We apprehend that the rule is founded upon reasons very different from those stated be Mr. Fearne.
Without disturbing the learned dust that has encrusted the writings of those system-builders who have maintained that fees were originally held at the will of the lord, and rose by degrees, passing through the stages of leases for years and for life, to the dignity of inheritances, it is sufficient for our purposes to fix ourselves upon that point of time when all agree that estates for life had become general. The tenant for life was bound to render to the lord certain customary services, and others that might be specially agreed upon between them. On his part, the lord was bound to protect the tenant in the enjoyment of the land, and, in case he was expelled by paramount title, to provide him with another feud. And, as connection between the lord and the vassal was personal, the latter could not substitute a vassal in his own place, nor the former a lord, without mutual consent. At the termination of the life estate and land reverted to the lord, again to be granted as a feud. It is probable that various motives conspired to induce the lord to grant the land to two or more persons, in secession, for life. Let us suppose the case of a limitation to A for life, and from and after his death to B for life. By the common law, livery of seizin was necessary to give title to a freehold interest in land. When, therefore, the tenant 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 the particular estate commenced, but it did not authorize him to enter into the possession of the land, even at the death of the tenant for life, without the consent of the lord. "Sciendum est foeudum sine investitura, mullo modo constitui posse." Now, if the tenant for life forfeited his estate, and only by forfeiture could he lose it, it necessarily reverted to the lord: because the remainder-man, not having livery of seizin, could not enter, to exclude the lord, and livery could not be granted him, as remainder-man, under the original agreement, for the tenant for life was not dead. The resumption of the land by the lord was not the acquisition of a new estate, but his restoration to his original estate: for the tenure, or contract of holding, was that the lord might reenter for breach of any condition; being restored to his old estate, the remainder, necessarily, no longer existed. It ceased with the estate upon which is depended. The same principle is found in many other cases, and applied with even grater rigor. Thus, if a man seized of an estate in fee marries, and afterwards the condition is broken, and the lord enters for the breach, he will avoid the wife's title to dower. So, entry for breach, of condition will defeat all rent-charges, statutes, and judgments. To prevent, therefore, the failure of the remainder, consequent upon a reverter to the lord of his old estate, the tenancy for life must, in every case, continue until the moment when, by the law of the contract. the remainder man is entitled to demand livery of seizin.
The rule, therefore, is grounded upon the plainest principles of justice. A remainder-man was in fact and in law, a party with the tenant for life in a contract with the lord. The tenant covenanted to perform certain obligations in praesenti; the remainder-man in futuro; and the lord contracted with both in praesenti. And it is clear that, by the contract, the rights of the remainder-man were dependent upon the fidelity of his coobligor, the tenant, to his obligations. This was the contract. It was a condition annexed to the contract, a part of the contract, that the life estate should be forfeited for certain causes. The contract, in the language of the civilians, contained a clause of nullity. We have seen, from Rolle and Coke, that even dower was avoided by a violation of the condition. So, by the Civil Law, if a mortgage was covenant of contract by which the estate was held was dissolved by the event of the condition, the mortgage would be defeated. This is in accordance with the general rule, Resoluto jure concedentis, resolvitur jus concessum. Thus, by both systems, the original proprietor resumed his estate, free from all encumbrances. As it is said by the common lawyers, he was in of his old estate.
The remainder-man was therefore a party with the tenant in a joint contract with the lord. Being a joint contract, and not several and independent, the remainder necessarily commences as the time of the creation of the particular estate; or, in other words, a remainder 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 remainders.
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CHAPTER IV - FEE
The principle of unity having been shown to exist with controlling power, not only over the whole territory, but every part of it, and also as entering as a substantive rule into the more complex portions of the law, its application is further to be considered. It is obvious that the maxim, that all lands are originally holden in fee, has two elements, jurisdiction and property, the dominion of the state or its sovereignty over the territory."These, jurisdiction and property, are," says Grotius, "in reference to nations, usually acquired by one act." Now the distinctive peculiarity of the feudal law was to regard every lord as a sovereign, and every feud as a domain, and reversing what is in modern times considered the natural order outings, it attributed jurisdiction to the lord by virtue of his possession of land. M. Guizot marks this singular fact as the constituent element of that system, the fusion of sovereignty and property; that is, the attribution to the proprietor of the soil, over its inhabitants, of all those rights which constitute what we now call sovereignty, and which at this time are possessed only by the public. Again, Dr. Arnold says, the law of property, of real property especially, and a knowledge of all the circumstances of its tenure and divisions, would throw light upon more than the physical condition of a people; is would furnish the key to some of the main principles prevalent in their society. For instance, the feudal nation that property in land confers jurisdiction, and the derivation of property either from the owner's own sword, or from the gift of the stronger chief whose sword, has more deeply affected the political and social state of the modern nations of Europe. At Rome, as elsewhere among the free governments of the ancient world, property was derived form political rights, rather than political rights form property. And we may add, that this is true of the United States. This fusion of jurisdiction and property in lands was the peculiarity of the feudal system. The sovereign granted out the use and profits of the lands to his vassals, but regained sovereignty over them. By virtue of it, he imposed taxed, coined money, made war, sat as a judge in Aula Regis, surrounded with his vassals asa council. So, in like manner, every lord, upon receiving investiture of a fee from his superior, immediately acquired, by attribution of law, the rights of sovereignty over his vassals, and sat as a judge in his baronial court, surrounded by his vassals. Thus we read in Liber Feudorum: "Si inter suosvassalos de feudo sit controversia, domini sit congitio et per eumcontroversia terminetur." The greater barons made war, coined money, imposed taxes, and in short, exercised all the rights of a sovereign; the smaller were restrained, by their want of the necessary physical power, form asserting these rights in their plenitude. This was the only difference between the greatest and the least of the barons in the feudal age.
The sovereignty exercised by a baron of any rank over his vassals was twofold; first, by means of his court, and secondly, directly and without its intervention. But in the course of time, as the turbulence of the state subsided, many instances of the latter class were enforced only by means of the court. For instance, the inquest at the suit of the crown to establish an escheat from want of heirs to the last person seized, has arisen since the feudal systems began to decline. The fact was always notorious, and the land was therefore immediately seized. An instance of this notoriety being sufficient, without further proof, will be found in the case of Dr. Storie, who was hanged for treason, being notoriously a native. The king, upon the commission of treason by rebellion, or denial of his feudal supremacy, did not, under the ancient Common Law, wait upon the pedetentous pace of the law, but instantly seized the lands of the traitor. The inferior lord, when his vassal denied his tenure, as by doing homage to another lord or attempting to alien his feud, also instantly entered and resumed his old estate. In both cases, of the king and the lord, the seizure was justified upon the same ground, that the tenant or vassal had denied his allegiance, and each exercised his right of entry. The right of entry is therefore a portion of the ancient jurisdiction or sovereignty of the owner of the fee.
Furthermore, for the purpose of distinguishing clearly sovereignty or jurisdiction form property, we will analyze a fee simple. Littleton tells us, that a tenant in fee simple is he that hath the lands and tenements to him and his heirs for ever. But neither he, nor any other of our juridical writers, has given an account of a fee without any adjective, simple, conditional, tail, &c. It is not peculiar to lands, and may be of titles of honor, of offices, incorporeal hereditaments, and also of that species of personal property known as annuities. It is not the use and profits of land, nor necessarily annexed to them; for if lands be limited to A, and his heirs of his body, the fee continues in the donor, but the use and profits are the inheritance of A. It is not assignable not divisible, nor can we conceive of its partition into shares. Thus two tenants in common of an inheritance of one fee, but undivided moieties of the use and profits, but neither nor both can transfer the fee. When they transfer the use and profits with the consent of the lord, the law attributes to the donee the sovereignty or fee. Its existence is shown in the right of entry. As the king reserved sovereignty or jurisdiction, or, more properly, as it did not pass from him, so does the donor still continue to possess it, whenever he creates an estate of inheritance less than simple. Whenever the tenant violates his tenure, by treason or by alienation of his life estate in fee, the donor, whether king or tenant in fee simple, may exercise his jurisdiction and resume his estate.
The manifest object of attributing to the lord this right of entry, or jurisdiction, was to enforce the faithful performance by the tenant of the duties incumbent upon him. As it is the power of punishing wrong, it is also necessarily the power of protecting right. Both these objects are combined in the office of trustees to preserve contingent remainders and uses. They have the right of entry upon the particular estate where the tenant attempts to destroy the contingent interests, and by their entry to preserve them. It is apparent, therefore, that the right of entry of fee is the last remnant of the jurisdiction that the feudal law attributed to property. Jurisdiction, fee, right of entry, is the ligament which binds the whole territory of the state and the several parts of it together in unity.
That the word fee originally signified only the property in lands is certain; the jurisdiction exercised by the lord was termed his sovereignty. Thus Coke terms the abbot of a monastery the sovereignty of the house. But, in the progress of time, the word sovereign came to be applied exclusively to the king, and jurisdiction ceased to be distinguished in language from the fee. Thus fee was made to comprehend jurisdiction, as well as the property. Thus confusion continues to the present time, and we use that word, in the present instance, for want of another familiar to us, and expressive to the attribute of property.
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CHAPTER V - SCINTILLA JURIS
Fee or sovereignty has no element of property, although by the feudal law it is the attribute of property. It exists only in legal apprehension, and is neither assignable, devisable, nor divisible. Now it is believed that the neglect to distinguish between the fee used in the sense of sovereignty, and fee as meaning property, has led both writers and judges into grave errors. For example, in Chudleigh's case, the limitation was to the use of A for life, remainder to his sons successively in tail. Before A had a son, the feoffees enfeoffed him in fee simple. The court held, that, by virtue of the statute of uses, all the seizin, estate, and possession of the feoffees were in thecestui que use in esse; and that a possibility of seizin continued in the trustees, to support the uses as they should arise. This is the much vexed question of the scintilla juris.
Mr. Fearne has shown that this doctrine is irreconcilable with the statute of uses. But, with the utmost deference of the opinions of that eminent lawyer, it is believed, that, however complete may be his refutation of the doctrine of the court, his own explanation is equally untenable. Mr. Butler states it thus: "That by the statute the whole seizin is at once completely divested out of the feoffees, and that, when the contingent uses become vested, the use is executed in the person to whom it is limited, not inconsequence of any seizin then accruing to the feoffees, but in consequence of the lands being originally conveyed to them with a liability in consequence of the statute to be attracted to the uses." The statute was intended to eradicate uses, but not to prevent the creation not to destroy contingent interests. Its purpose was to lop off from the law those foreign grafts, uses and trusts. The courts, to preserve these contingent estates, resorted to the scintilla juris. Mr. Fearne suggest "a liability to be attracted to the uses,"annexed to the land.
Now it is as difficult to comprehend this "liability" as the scintilla juris; and the latter phrase has this advantage, that it is used by Bracton, and the former has no authority for it. It is true, however, that Bracton uses it to express emphatically the entire absence of right, "nullum jus haberetnec juris scintillam ejieiendi." Moreover, Mr.Fearne reverses the rule of the law, that the land attracts the fee, and holds that the contingent uses attracts the land. But the statute changed the equitable into a legal estate; in did not and could not make the contingent a vested use; much less confer upon the contingent cestui que the enjoyment of the use and profits. Until they became vested, even considering them as merely legal, and not as equitable interests, the fee or jurisdiction continued in the feoffees, and was not assignable by them. That jurisdiction, fee, or right of entry was in itself sufficient to support the uses, without resort to the imaginary scintilla juris, which contradicted the statute or the liability, which has no authority for its use. The statute, then, has its full force, and the seizine state and possession are transferred to the cestui que use in esse. When the other uses arise, they are supported by the right of entry. The feoffment by the feoffees was therefore a nugatory act. Nothing continued in them but jurisdiction or right of entry, which is not assignable. Nor can the right of entry be barred by a feoffment, for a Common Law anciently actual livery was necessary, and though subsequently, in the reign of Elizabeth, it was held that a feoffment by a mere wrongdoer in possession conveyed a fee, yet in the principal case the feoffees had not possession; it was in the eldest son A. If, therefore, it be admitted that trustees to preserve contingent uses may bar their right of entry, it is clear that a feoffment is not the appropriate instrument.
That the court confounded sovereignty or fee with something of which seizin might be predicated, is palpable. Whereas, the feoffees had neither seizin estate nor possession, but merely a right of entry, that was not assignable, and which we cannot conceive as passing from them to the tenant. The liability which Mr. Fearne suggest as a convenient substitute for the scintilla juris, is equally incorrect. He fastens upon the land as a kind of lien what his opponents conceived to be a possession, or possibility of it. In fact, the court and himself mean the same thing, but they look at it on different sides; the court thought the feoffees had a possibility of right to the land, he thought that the lands were subject to a liability of duty. Neither, therefore, was correct; the feoffees had only a facult as, power, or right of entry, and they needed no more to support the contingent uses. It was not an interest, but just the identical right that the state has to seize the lands of a traitor, or that the donor and his heirs have to enter upon breach of a condition, or resume an estate after the death of the last special heir, to whom it has been limited.
It is because the fee is jurisdiction, and not property, that a remainder cannot be created after a fee conditional. It cannot be divided, and therefore tenants in common and joint tenants have only one fee; although during their cotenancy they may enjoy the use and profits in different proportions. When their shares are divided and are taken in severalty, the law attributes to each its own fee or jurisdiction.
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CHAPTER VI - CONTINGENT REMAINDERS
It is requisite that the remainder be in the party to whom it is limited at the time of the livery. "This is regularly true; but yet it hath divers exceptions": these are contingent remainders. When it is said that the remainder must be in the grantee at the time of the livery, it is evident that nothing more is thereby meant, than that the right to the enjoyment of the use and profits after the death of the tenant then begins. In the mean time they belong to the tenant of the freehold. Now, where that right is limited to an uncertain person, the rule that the right must be in the party to whom it is limited as soon as the livery is made, cannot be observed. Hence some persons, to fulfil the letter of the rule that the remainder must pass out of the donor and be in the donee, insist that, so long as the person is uncertain, the fee is in abeyance. It would be sufficient to refer to Mr. Fearne for a refutation of his notion, but that his argument implies that fee has some element of property. Stating the proposition correctly, that nothing remains to the donor, after he has disposed of the use and profits, but jurisdiction, there can be no pretense for the doctrine of abeyance.
When a lord or tenant in fee simple has created a freehold interest, with a contingent remainder over, he has divested himself in favor of the tenant of the use and profits, and has nothing more than jurisdiction and the ultimate property. His fee can no more be in abeyance than that of the state would be if it created a similar estate. The donor has the right of entry to protect the contingent interest, or, if he has created none, to protect his reversion or reverter. It can be used only against the tenant, and not against the remainder-man, whether vested or contingent. It is for the benefit of the latter, and hence its mere existence is sufficient to support these limitations. From the fact that it is the duty of the trustees to exercise the right of entry to preserve contingent remainders, springs their liability to punishment for its abuse, or non-user. The duty which the trustees owe to the contingent remainder-man, although an uncertain person, gives that person, when known, a right; so that, in fact, there is between the trustees and the remainder-man a contract. That the uncertainty as to the person who may have the right to enforce a contract does not negative its existence, is shown in many cases. Thus, where a person binds himself by his obligation to pay another, his heirs, executors, or administrators, L100, upon the death of the obligee, he may or may not have executors; and either way, before his death, it is uncertain upon whom will devolve the right to enforce the contract. When the suit is instituted, it is not as upon a new right accruing subsequent to the death of the obligee, but upon the original contract.
In case of a limitation to the heirs of B, it is certain that, at his death, he will have heirs. These would, therefore, by the terms of the limitation, take the estate, although the heirs of B should not be in existence at the death of B, as if he survived the first taker. There is nothing in the contract, or words of limitation, to negative this view. But it is certain that the heirs of B will not take the estate unless he dies before the tenant, and during the continuance of the particular estate. The remainder takes effect, provided that the condition upon which it is limited is performed during the life estate. This rule, which inexorably demands that the remainder should vest, a latest, eo instanti with the death of the first taker, is the public law, and no part of the contract between the donor and donee. The former cannot vary it or introduce any modifications of it. The public law requires that its fundamental principle, the unity of estates, should be observed.
But we allude to this subject at this time more particularly to notice that the vested and contingent remainders differ in this respect, that the latter are dependent upon a condition. The uncertainty of the vesting of the contingent remainder is because that event, its vesting is suspended by a condition which may not happen or be performed during the continuance of the particular state. Mr. Fearne uses the phrase "event of condition," in his definition of a contingent remainder, and in all his rules except the third, event. But it is evident that the definition is properly a summing up of his rules. Moreover, it will be seen, upon examination, that his four classes can, without prejudice to their accuracy, be stated in another form of words, which will admit the use of one or other of the four phrases which, according to Code, are peculiarly expressive to conditions. This is noticeable only because it lays open the true elements of the doctrine of contingent remainders. The law 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, and form and ten years after his death to the heirs of Be, without conflict with any rule of the doctrine of conditions; but such a limitation would be void, because it would sever the unity of the estate.
These exceptions, contingent remainders, are admitted into the law, therefore, upon intelligible principles. The feudal principle which still inhabits our law requires that the interests of the tenant and remainder-man should be united. It would defeat the jurisdiction of the donor, if, when the tenant forfeited, the remainder-man, whom we have seen to be a joint contractor with the tenant, did not also lose his right; and this would follow if another interest, independent of the freehold, intervened between those two estates. But so long as the unity of the estate is preserved, the remainder may be made to depend upon any limitation, condition, proviso, that the donor may dictate. Cujus est dare, ejus est disponere. The condition annexed to the remainder only renders it uncertain during the previous estate. The tenant is certain at the time of the happening of the condition. Where the condition, however, not only renders the limitation over uncertain, but also the duration of the life estate itself, it is a conditional limitation, according to Mr.Fearne, and void a Common Law.
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CHAPTER VII - CONDITIONS
The doctrine of contingent remainders is, as we have seen, the application to remainders of the law of conditions, circumscribed as to the time of their performance by the public law. "conditio dicetur cum quid incasum incubum qui potest tendere aut esse aut non esse confertur." When coupled with an interest in property, as in case of a remainder, than the definition of the Civil Law is more accurate. "Conditio appellatur, enentus acujus futura et incerta existentia, pendere obligationem aut ultimamvoluntatem, contrahentibus testatori ve placuit." Pothier defines it thus: "A condition is a case of 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 condition neither affirms not denies any proposition, but suspends it. It is the significant of doubt, rendering the proposition or limitation to which it is annexedun certain. The conditions which concern contingent remainders, or other such interests, must be distinguished form those conditions usually termed implied, not only because the former are expressed, but because they differ materially in their natures. An implied condition may alter or defeat an estate, but never creates an estate. They seem rather to be essential parts of a contract, unexpressed terms of it, than accidents. Thus, no life estate or fee conditional can be created without an implied condition that the donor may enter for breach of it. Every ante-nuptial settlement implies that the conveyance shall be void in case the marriage does not happen. Moreover, these conditions do not suspend the limitations of estates to which they are annexed.
The use of logic is, among other things, to determine the right use of terms, and thus to point out the abuse of them, and also to distinguish between terms rightly used, and the matures and properties of the different terms. The application of logic to legal questions has ben admirably illustrated by Mr. Fearne, in his treatise in Contingent Remainders. After defining such a limitation, and stating four classes of contingent remainders, he proceeds to show the true meaning of these words. In his third section, he distinguishes conditional limitations form contingent remainders, which Mr. Douglas had confounded, and in the remaining part of the chapter he shows that, by abuse of terms, vested have been mistaken for contingent remainders. In short, he shows by his criticism, that the words which were supposed to create conditions did not, and therefore that the remainders were vested. This discussion occupies the greater part of his treatise, and, as has been observed by Mr. Butler in his preface, "No work on any branch of science affords a more beautiful instance of analysis."
Mr.Fearne continues his logical criticism, and shows that certain words seem to imply conditions, but that these are false conditions, not conditions. Thus, the definition of a condition requires that the condition should render the limitation uncertain, not impossible. Hence, if an event must happen, as death, the limitation is not uncertain, and therefore is unconditional; if it cannot happen then it is impossible, and the limitation is unconditional. In the former case, the limitation over is vested and valid, in the latter the limitation is void. Again, under the head of impossibilities, are conditions against law; it would 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 that the event of the condition should render the limitation certain or uncertain; that the event should cause the limitation to take effect, or to be defeated. therefore it cannot create or destroy a part of the limitation. It requires that the condition should produce certainty or uncertainty as to that limitation. Hence it must create or defeat that limitation, not another, and different one. A condition is the significant of doubt, and merely an accident annexed to the limitation; therefore, of the event is an infringement of the limitation, it is inconsistent with it and cannot be annexed to it, and therefore the condition is void; as that upon a certain event a fee simple shall not be alienable.
These are some of the principal rules of logic, and have been noted with reference to the treatise on Contingent Remainders. In that work the examples and illustrations will readily be found. To attempt to epitomize it, would be to injustice, as it contains no matter superfluous to the practical lawyer or the legal specialist.
Conditions are either precedent of subsequent. This division is founded upon a regard to the consequence of them, and not upon their location in the deed, nor upon their terms. They are precedent when they are the beginning, and subsequent when they are 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 case of a conditional limitation, the same condition in reference to the previous estate is subsequent and its end, and in reference to the limitation over, it is precedent and its beginning. And that the limitation over is a conditional limitation is because of the uncertainty that the condition will be performed; if that was certain, then it would mark the natural termination of the particular estate, and the limitation over would be a remainder.
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CHAPTER VIII - RELATION
Ordinarily a contract upon condition specifies the time at or beforewhich the condition must be performed; in the absence of such specification,the law fixes it. But in reference to contingent remainders the law does notleave it optional with the donor to specify the time, but demands inexorablythat the condition be performed during the life of the tenant of theparticular estate. At the moment of his death, the remainder must be capableof vesting in possession; although by the contract the condition may berequired to be performed before that period. In like manner, the heir must becapable of taking at the time of his death, as if, being heir apparent, hebecomes civiliter mortuus, the estate will not devolve upon him. Now, thetenant of a particular estate has one estate, and as to him the remainder-manhas one estate. Yet both, by reason of the jurisdiction of the donor, have asto him one estate. The relations, however, of the tenant and remainder-mantowards each other, are, as we have seen, determined by contract, but theirrelations to the donor depend upon jurisdiction. As to each other, the tenanthas only the enjoyment of the use and profits before they pass or devolve uponthe remainder-man. Such, too, is the relation of the ancestor and heir;setting aside the consequences of the jurisdiction of the ancestor, and havingregard only to his enjoyment of the use and profits, and their devolution uponthe heir. Both the heir and remainder-man obtain the use and profits at thedeath of the party who previously enjoyed them. The seizin of the tenant andthat of the ancestor are the seizin of the heir and remainder-man; disseizinreduces 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 does not begin with thedeath of the ancestor. For the seizin of the ancestor, not his possession,gives seizin to the heir, and seizin was obtained at the commencement of theestate. It is a rule of the Common Law, that no inheritance can vest inpossession till the ancestor is previously dead. Before that time, the personwho is next in the line of succession is called heir apparent of heirpresumptive. Heirs apparent are such whose right of inheritance isindefeasible, provided they outlive the ancestor; heirs presumptive are suchwhose right of inheritance may be defeated. Nor is this rule of referring theright back to a time anterior to the death of the ancestor, limited to thecase of heirs. Thus the remainder is referred back to the commencement of theparticular estate. The donor of a fee conditional which has reverted to him byfailure of issue, is in of his old right, not of a new estate. A wife's rightto dower is referred back to the marriage, and will prevail against asubsequent charge imposed on the estate. Coke, after stating a case of a rentcharge being displaced by the right of dower, remarks: "In which case twonotable things are to be observed. First, albeit the dower be by relation orfiction of law above the rent, yet she shall not have her entire rent out ofthe residue, for a relation or fiction of law shall never work a wrong, orcharge a third person; but in fictione juris, semper est equitas." Thesefictions, however much they may startle the minds of those undisciplined inthe reason of the law, are legal truths, admitting no contradiction.
Further illustration of this fiction will be found in conveyances byCommon Law and by custom of copyhold. The surrenders of copyholds areconstrued as deeds and conveyances at Common Law. If a copyholder surrender tothe use of his will, and devises to a stranger, and then dies, the devisee byhis admittance takes as of the day of the surrender. So where at Common Law aperson, having made a will of lands, acquires afterwards other lands, anddies, not having republished his will, the devisee takes as of the time ofmaking the will, and therefore does not obtain the lands after acquired. So,says Lord Chief Baron Gilbert, in his book on Tenures, there is no rule betterfounded in law, reason, and convenience, than this, that all the several partsand ceremonies necessary to complete a conveyance shall be taken together asone act, and operate from the substantial parts by relation. Livery related tothe feoffment, enrolment, to the bargain and sale, a recovery, to the deedwhich leads the uses; so admittance relates to the surrender. The retroactiveeffects of grants are seen also in the case of an alien, who has issue; thatissue is not inheritable to his father, but if he be naturalized that issuemay inherit. But if one be made denizen, the issue that he hath afterwardsshall be heir to him, but no issue that he had before. Again, "There is agreat diversity as to the forfeiture of land between an attainder of felony byoutlawry upon appeal and upon an indictment; for in case of an appeal, thedefendant shall forfeit no lands but shall as he had a the time of theoutlawry pronounced; but in case of an indictment, such as he had at the timeof the felony committed." So that, if he had given away his lands, in thelatter case they would still be forfeitable.
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CHAPTER IX - HEIR - THE RULE IN SHELLEY'S CASE
Closely connected with the doctrine of remainders is the rule inShelley's case. Where a limitation is made to A for life, remainder to theheirs or heirs of the body of B, A has only a life estate. But if thelimitation be to A for life, remainder to the heirs or heirs of the body of A,he has an inheritance. The former is, and the latter in not, a remainder. Theonly reason given by out writers for this difference is, that the latterlimitation is within the rule in Shelley's case. Mr.Fearne states thus:"Wherever an ancestor takes an estate of freehold, and a remainder is thereonlimited mediately of immediately in the same conveyance to his heirs or to theheirs of his body, such remainder is executed in the ancestor." Why? Neitherthe grand argument of Mr. Justice Blackstone in Perrin and Blake, not theadmirable criticism of Mr. Fearne on that case and the rule itself, enlightensus as to its origin. It is too important, however, not to receive carefulconsideration.
An estate in fee did not originally pass an estate in the same sense aswe now use it. For instance, where an estate was granted to a person and hisheirs, he could not alienate it without the consent of the heir. The heir tookby purchase, and not by descent. This was equally true of base or qualifiedand conditional fees. But before the time of the Glanville (A.D. 1189),tenants in fee simple, as we now term them, had acquired the power, buttenants in fee conditional still continued unable, to alienate. When Bractonwrote (A.D. 1268), the latter had also obtained the right of alienation. This,it is universally admitted, was produced by judicial legislation. To correctthis novelty, and restore the ancient Common Law, the statute de donis enacted(A.D. 1285). It was merely declaratory, and enjoined that the will of thedonor secundum formam chartae, which had beforetime been disregarded, shouldthereafter be observed. It is at this point that our law diverges from theEnglish law. Fees tail with them correspond exactly to the fees conditional ofthe Common Law; at all events, if they do not, it is because courts haveadopted principles irreconcilable with the statute de donis. In this country,fees conditional at Common Law are recognized, and at the same time the rulein Shelley's case. It is totally unnecessary to resort to the idea of theperformance of a condition by the ancestor to execute the remainder in him,for the limitation is within the very letter and spirit of the rule inShelley's case. And to apply this rule in the performance of a condition tofees conditional at Common Law is an error, inasmuch as juridical history andEnglish legislation prove that where a limitation was made at Common Law to Aand the heirs of the body, they took by purchase, and not by descent, and uponthe death of the ancestor might recover the estate by a suit at law.
However, juridical writers have stated that they are conditional fee forthis reason, that it was a condition implied, that, if the ancestor begotheirs of his body, he should have an inheritance. As well might it be said,that, where an estate was granted to A and his heirs, it was upon conditionthat he should have an inheritance if he had heirs. For by the ancient CommonLaw, as we have seen, he could not alienate if he had heirs, and such, thestature de donis declares, was the Common Law of conditional fees. In thesecases, the words heirs and heirs of the body only determined the quantity ofestate that passed from the donor, and both cases upon the failure of heirs,general or special, the land reverted to the donor. This is the onlyconclusion that can be drawn form Bracton, who wrote (A.D. 1268) seventeenyears before the enactment of the statute de donis. He is, therefore, thelatest authority on this subject. After stating a coarcted limitation toparticular heirs, he says, "Si autem, nullos tales haeredes habuerit,revertatur illa terra, ad donatorem per conditionem tacitam etim si mullamentio in donatione habeatur." Which may be translated thus: "If the tenantshall have no heirs of his body, the land reverts to the donor by an impliedcondition, even of none be expressed in the deed." Again, he states that, asthe remoter heirs are excluded, of the heirs of the body fail, the landreverts to the donor by a condition expressed or implied; "in quo casu,cumomnes haeredes remotiores excluduntur,sit terra revesura ad donatorem perconditionem tacitam vel expressam si tales haeredes dificeuint sicut adjieitdonotor in eharta donationis." The condition was not to enlarge the estate ofthe tenant, but to cause it to revert to the donor. In other words, thecondition was not that he should have a fee upon the firth of issue, but thatif he did not have issue it should revert to the donor, and if he did haveheirs it should go to them secundum formam chartae. Plowden states the rulewith accuracy in the following sentence: "The fee simple absolute was whereland was given to a man and his heirs; the other, to the heirs of his body,which was also fee simple." (Why, when, was the birth of issue not a conditionin both cases?) "But in this case (fee conditional) there was a conditionannexed to it, that, if he died without heirs, the land should revert to thedonor." Clearly the condition was for the benefit of the donor, and whereby hemight regain his old estate, and not for the benefit of the donee, and toenlarge his estate. We apprehend, therefore, that it was upon some otherground than the performance of a condition by the donee, that the fudgesdetermined that upon the birth of issue the limitation to heirs of the bodywas executed in him. And the true ground is, as we have before intimated, therule in Shelley's case.
Blackstone attributes the interpretation of these limitations adopted bythe judges to their sense of the inconveniences of fettered inheritances. Theclamorous demand of the barons for the enactment of the statute de donisproves that they did not feel these inconveniences, and they owned nearlyevery acre in the kingdom. Many attempts were made in the succeeding twohundred years to repeal it, but it had contributed so much to the increase ofthe power of the barons, that they always refused their consent. At length,Taltarum's case was got up by Edward the Fourth, and estates tail weredefeated by the astutia of the judges. An open avowal of the sentiment, thatthese estates were inconvenient to the crown, as they were insuperableimpediments to the royal vengeance and rapacity, would have been extremelyperilous to the reverend bench. They exhibited their astutia by applying tothese limitations a rule derived from the Civil Law. The subject deservesexamination, not only because of the importance of the rule in Shelley's case,but because is will uncover also the true character of the heir at Common Law,an inquiry which has been altogether neglected by our juridical writers.
It is certain that, where a limitations was made to the heirs of thebody, these were intended to take by purchase, and not by descent. Such wasthe old Common Law. "But if a man," says Lord Coke, "makes a gift in tail, ora lease of life, the remainder to his right heirs, this remainder is void, andhe hath the revision in him; for the ancestor during his life beareth in hisbody in judgment of law all his heirs, and therefore it is truly said thathaeres est pars antecessoris. And this appeareth in a common case, that ifland be given to a man and his heirs, all his heirs are so totally in him ashe may give the land to whom he will. Here, the idea expressed is, that duringthe life of the ancestor he and his heirs are one person, the heir is part ofhim. So the family and the father, in judgment of law, are one; their rightsare his, and can only be vindicated, as to other persons, by and through him.So the rights of all the families in a state are so totally in the state thatit may dispose of them. The idea of the unity of the father and son, theancestor and heir, was familiar to the Romans. Cicero, in his philosophictreatise on laws, recognizes it: "Coronam virtute partam, et ei qui peperissetet ejus parenti, sine fraude lex impositam jubet." On the other hand, the heirquoadmodo during the life of the ancestor joined with him in the property.Thus Cicero, in his speech against Verres, says of children, "Quibus cum vivibona nostra partimur." So Justinian: "Sedsui quidem haeredes ideo appellantur,quia domestici haeredes, et vivo quopue patre, quoadmodo domini existimantur."Again, in a play of Terence, a father speaking of his son calls him "meusparticeps"; haeres pars antecessoris. The Code states it thus: "Cum et naturepater et filius, eadem esse persona pene intelligantur." Indeed, the wordhaeres, heir, is only another form of herus, owner.
By the adoption of this rule of the Civil Law, that the heir and theancestor are one, the limitations to the heir where executed in the ancestor.The heir did not, by the civil Law, acquire the right after the death of theancestor; he then succeeded to him in the enjoyment of the use and profits.Upon the same principle, the earnings of the child became the property of thefather. The latter absorbs all his rights, and his wrongs can only bevindicated by the father. Hence, in the language of Lord Coke, "if land belimited to a man and the heirs of his body, all his heirs are so totally inhim as he may give the land to whom he will." The maxim that nemo est haeresvirentis is strictly applicable to this explanation. Heir means, in thatmaxim, owner. Before the death of the ancestor, he is heir apparent; but in aparticular case, as Coke shows, the heir apparent may also be complete heirand have the use and profits of an estate. He is termed the haeres astrarius,and he takes by descent; for if he took by purchase, he would be subject torelief.
The peculiar character of heirship is discoverable in every part of thelaw, and will be still further developed in the next chapter.
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CHAPTER X - WARRANTY
Where a limitation was made to the heirs, or heirs of the body, we haveseen that the estate in remainder became executed in the ancestor. Now, incase the ancestor sold the estate, ho was bound by the feudal law to protectthe purchaser in its enjoyment, and in case of eviction, to recompense himwith other lands. Thus was termed a warranty of covenant real, and bound thelands as a lien, into whose hands soever they passed by descent. And asfeoffment, fine, exchange, partition, were the only species of conveyance, thefeoffer was always bound by an implied warranty, in every sale of lands.Express warranties could scarcely exist, inasmuch as writing was to thegenerality an unknown art. Thus, by the ancient Common Law every sale of landsimplied a warranty, and so far is identical with the Civil Law. Good faith isthe foundation of warranty in both systems.
When deeds came into use, the warranty was expressed. This would, ofcourse, exclude any implied warranty inconsistent with the express; and inthat sense it is true that expressio unius exclusio alterius. "For if A make afeoffment by dedi, and in the deed doth warrant against J. S. and his heirs,yet dedi is a general warranty during the life of the feoffer," so that thefeoffee could vouch the feoffer during his life. "And of a man make a leasefor life, reserving a rent, and add an express warranty, here the expresswarranty doth not take away the warranty in law, for he hath the election tovouch by force of either of them." In a previous passage, Coke states: "Notethat by the Civil Law every man is bound to warrant the thing that he sellethor conveyeth, albeit there be no express warranty; but the Common Law bindethhim not, unless there be a warranty either in deed or in law, for careatemptor." Neither doth the Civil Law bind him to warrant, unless there be awarranty express or implied. It bindeth him to warrant every thing he selleth,for instance, land; so does every conveyance at Common Law. These arefeoffment, fine, exchange, partition. But Coke has overlooked, in the abovepassage, the difference between conveyances at Common Law, and those havingtheir operation under the statute of uses, a difference of which Mr. Fearnehas made great use in his essay on Contingent Remainders. It is this, thatconveyance under the state of uses transfer only the right of the donor,whilst those at Common Law convey the right of the party, destroy contingentestates, and invest the donee with an absolute fee. It is in the former thatexpress warranty is indispensable, and to them that the rule caveat emptorproperly applies. So caveat emptor applies, for the same reason, to sales byofficial persons, as sheriffs and masters in chancery, whose deeds are notproperly conveyances, but memorials of the execution of judgments and decrees.It is plain, therefore, that the Civil does not differ from the Common Law,but from that law concerning conveyances which has grown up under the statuteof uses.
The rule of the Common Law is, that the heir is not bound unless named.The extent of his liability is determined by the value of the assets. It isimportant to distinguish between his liability and the extent of it. When hisconsent was necessary to alienation, no doubt he was named or joined. So,after deeds came into use, he was named or joined, and his liability was tomake recompense in case of the eviction of the tenant. Now an heir cannotdivest himself of that character, for he is born heir; and if, therefore, therule that the heir, if named, was bound, was strictly enforced, his heirshipwould have been often highly detrimental. To correct this, a modification wasintroduced, which did not alter the nature of heirship, but limited hisliability to the amounts of assets. The modification is sometimes expressedthus, that the heir is bound only as tenant of the lands. But it will be seenthat the question therein was, substantially, whether the heir should have thebenefit of the modification of the rule, and be held liable only to the extentof assets. His liability as heir was conceded. The like modification prevailsin case the heir is named in a bond of the ancestor. Then the heir, as in theformer case, is responsible as heir, but his liability does not extend beyondassets. In an action on the fond, he was sued in the debet and detinet, whilstan executor is sued only in the detinet. The latter was the representative ofthe deceased debtor, the heir was charged as the debtor. And he could notplead that there is an executor who has assets; he must confess the action andshow the certainty of assets. For the obligation is a personal lien. Now theheir cannot be accounted the debtor in such case, where all the personaltygoes to the executor, without admitting that he and the ancestor are one,independent of assets. And in all this, says Lord Chancellor Macclesfield,"the Common Law imitated the Civil Law."
The Romans regarded heirship just as the Common Law does. Insolvency waswith them a disgrace, not only to the unfortunate debtor, but to his family.It was a powerful objection, in vulgar apprehension, to the claims of acandidate for office, that his father was a bankrupt. To prevent thisdisgrace, the common practice was to appoint a slave the heir. Where he diedintestate, the praetorian law intervened and permitted the heir to renouncehis right as heir, and to take the estate, as a possessor bonorum, or tenant,or bailee, who then filed his inventory of the assets, by which both he andthe creditors, unless they could show fraud, were bound. In fact, it was aplea of riens per descent, or only a limited amount of them. But the characterof heir was unchanged. The Common Law did not pass through thesemodifications, but adopted the rule as it existed in the Civil Law of thelater times.
It may be added, that the characteristics of heirship enter also into thelaw of conditions. A warranty is a covenant of the benefit of the donee andhis heirs, a condition generally for the benefit of the donor and his heirs.Neither of these can be assigned, at Common Law, to a third person, but bothof them descend to heirs. No chose in action can be assigned to a thirdperson. Is descent an assignment to a third person? No heir can take bypurchase the interest that he might take by descent. Now the heir does take bydescent, and that is not an assignment to a third person. The only explanationof this difficulty is, that the heir in apprehension of law is one with theancestor, haeres pars antecessoris. Hence his land is attributed to thefather, and rights are vindicated by the father, and upon the death of thelatter, the heir is not a third person, but the same person, and thereforepersonally a debtor for the obligations of the father. The effect, therefore,of the rule in Shelley's case and warranty is to maintain the unity of personand estate.
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CHAPTER XI - DIVERSITY OF RIGHTS
The law recognized this division of rights; 1. Those which spring from the relation of parties to a particular purpose, as the rights springing fromcommerce by partners, and those rights which relate to a particular property,as of joint tenants. 2. Those rights which are not connected with anyparticular purpose or estate, the rights of an individual. Between the rightsof a society, partnership, or joint tenancy, and those of an individual, not apartner, joint tenant, or corporator, there is a broad and plain difference.But when we consider that the same individual has rights as such, and also, atthe same time, as a corporator, of partner, of joint tenant, or citizen, it isextremely difficult to define accurately what, in judgment of law are therights of the associate and the rights of the individual. Thus, the difficultyis very grate in the case of rights to land in which the rights of theindividual and of the corporator are intimately blended. It may be said, ingeneral terms, that as a corporator of joint tenant his rights are such as thelaw of the corporation or joint tenancy recognizes. But the individual rightsprings from the general right, and is only distinguishable from it when theindividual exercises it. So that this general proposition, however true in theabstract, does not aid us in obtaining a clear apprehension of the cases towhich it is properly applicable. Now, the necessity of some rule by which wemay distinguish these classes of right is very manifest, for thereby inpractice we should arrive at correct conclusions, not only as to the rights,powers and duties of the corporator, but also of the individual. Such a rule,for example, would determine when a contract bound an individual as a partner,that is, was obligatory on the partnership, and when it did not bind thatsociety, but bound the individual. It is plain that the question underconsideration, therefore, touches the foundation of the most important affairsof corporations public and private, partnerships, and all other unions of men,with or without connection to property.
Perhaps the nearest approximation that can be made to certainty in themode of distinguishing these classes is by reference, not to the nature of theright, but to the exercise of the means of maintaining and preserving it. Forinstance, the state protects each individual in the enjoyment of his property,without denying to him the right of protecting it himself. But it does notinterfere and use the means of protection, unless the invasion of property isaccompanied with disturbance of the public peace. The state, before itinterferes, regards the end for which it was formed. In like manner acorporation, the legal entity, does not become a party to a suit where therights of one corporator are invaded by another; nor where one partner injureshis copartner, does the partnership interfere; and, in both these cases, forthe reason that the end of purpose for which the society was created does notdemand it. But in all these cases, where the end or purpose does require it,the corporation, partnership, joint tenancy, or other association, does becomea party. There are cases, however, in which the corporation or state mayinterfere, without denying, at the same time, the right of suit to theindividual, as in case of an assault and battery. But still the ends intendedto be accomplished by the state and by the person injured are different. Theformer vindicates the public peace, the latter, the wrongs done to his person.But it is clear that the suit has no reference to the nature of the right, forthe individual may be, or he may not be, a member of the state. At the sametime, it is to be admitted that the rule suggested does not meet every casethat can be conceived. Thus, two persons own jointly White-acre and one ofthem owns Black-acre, the adjoining parcel of land, and a question arises asto the true boundaries; or suppose that a firm claims to be a creditor of oneof its members; in such cases a regard to the end does not direct us to theproper means of determining that question. The same proposition was submittedto Pomponius, that eminent Roman lawyer, whose opinions have been adopted intothe Digest. He answered, as we do, that, before the question could bedetermined by law, the society must be dissolved. The law has three distinct purposes: 1. To maintain the existence andwell-being of society. This is true of every society, public of private,corporate of incorporate. 2. To maintain and preserve the person and propertyof each individual member free from all burdens which are not common to everyother member. 3. To maintain and preserve the special rights of each member,and also of each member in relation to property. These special rights ofperson are, for example, the rights of magistrates, special rights ofproperty, as casements. These manifestly are altogether accidental, varying invarious societies and in the same society at various times, and alwaysdependent upon the will of society. But the first and second class arefundamental principles, which cannot be varied in any material degree, withoutthe destruction of the very purposes of society. We shall, therefore, omit allfurther notice of the third of these classes.
The means of accomplishing the just end are sometimes general andsometimes individual; general, when a society defends itself or asserts itsrights against non-members, or members; individual, when one member invokesthe aid of the law against a fellow member. As to the second class, the meansare individual; thus, and individual or class, upon whom a tax supposed to beunequal is imposed, or a larger share of contribution towards debts. But it isevident that in all such cases of the second class the party complaining mustbe a member. Hence an alien is excluded from participation in any thingrelating to the society, not because he lives under a different law, butbecause his existence is not recognized by the society. His condition is notexceptional, for the law as a unity has no exception, but many parts. So,likewise, and on the other hand, where the individual by any means ceases tobe a member, his right as a member to exercise the means of preserving hisperson and property ceases.
It follows from the foregoing proposition, that society has no right toimpose unequal burdens on any member, that any member has a right to the meansof preventing it. That, while every member is bound to the extent of hisability to maintain and preserve the society, his obligation is limited byreference to the ends of society. That, to accomplish these ends, he must havea voice in the management of affairs, to be used for the preservation and wellbeing, and not the destruction, of society. That, sharing the burdens, he isenabled to participate in the benefits of society, and vice versa. Theparallel between a state and every other society might be still furtherextended. But sufficient has been said to illustrate the rule suggested. Now these same principles are equally applicable, if we consider anindividual of one state, in reference to a foreign state. Then the diversityof rights is a part of the jus gentium. For example, an American isacknowledged by every European power as having rights, not only if he happensto be within its territorial limits, but even although he may never haveentered them. The lex loci contractus will always prevail, except in those fewcases in which the public law of the state where the contract is sought to beenforced may forbid. This branch of the law may be accurately termed theprivate international law. It is apprehended that the common term conflict oflaws is altogether misapplied. Dr. Story's work on the subject is not atreatise on the conflict of laws, but on the agreement of laws. Where the lawof one state is in conflict with that of another, it depends entirely upon theforum which law will prevail. It is only necessary to refer to that learnedwork to establish this opinion. The diversity of rights between the Americanand the Frenchman exists only so far as the law of the corporation renders thelatter the possessor of, and denies to the other, certain corporateprivileges.
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CHAPTER XII - JOINT TENANCY
This species of estate furnishes the most perfect instance of theprinciple of unity as applied to interest owned by two or more persons. It isone estate as to the state, as to the tenants, and as to third persons, beingheld by unity of time, title, interest, and possession. This unity can bedestroyed a Common Law only by the voluntary act of the parties. Its relationto tenancy in common is identical with that of partnership to part-ownership,and it will be found, upon examination, that the principles of the former aregenerally applicable to joint tenancy. The jus accrescendi rests upon thisides, that each owns the whole estate, singulis in solidum debtur. Such, too,is the rule of partnership. Coke states that an alien can take as a jointtenant, and that the state cannot interfere until the estate has vested in himby survivorship, for the other tenant owns the whole fee, in solido, as heexpresses it. It may be doubted whether this statement is correct. Undoubtedlythe escheat cannot take place before survivorship, for the reason given; butif he were disseized by his cotenant, he would have been remediless. Theenjoyment, therefore, of the usufruct would be altogether dependent upon thewill of his cotenant. Moreover, by no manner of means could he acquirejurisdiction, for that is an attribute of the law, and the alien can takenothing by law, not even a usufruct for life. To admit him to be a jointtenant, in the legal signification of the term, would lead to the directcontradiction of some of the most certain rules of the law. He would have theright to bring a real action, to attend court as one of the pares, etc, etc;in short, to exercise those rights which, by the Common Law, were peculiar tocitizens. A very serious practical difficulty would impede even the jointtenant who is a citizen, if he was forced to bring ejectment. Can he suealone? The production of his title-deed would prove that he had a cotenant; ifhe joined him in the action, he would fail by reason of the alienage. But ifthe court should regard him, as in theory the unquestionably ought to be, asnon-existing, then the same result would follow as if he were dead, the otherwould be sole owner. It was held by Lord Hardwicke, that where a legacy wasleft to two persons, in words that would make them joint tenants, if one ofthem died before the testator the whole passed in solido to the other, not bysurvivorship, but by force of the words, which made him sole owner. It is saidthat an alien may take, but cannot hold. Of course nothing more is meant thanthat, is long as the state does not interfere, he may enjoy the use andprofits. The difference between him and a mere occupant without title is notvery plain, for the latter may enjoy the use and profits until ejected by theparty having the right. But neither the alien not the tortious occupant can besaid to have the right. Besides, the occupancy of the latter will finallyripen into right, whereas that of the former never can resist the claim of thestate.
The idea of the jus adcrescendi is more correctly expressed in the phrasejus non decrescendi. "Dicitur etiam jus adcrescendi inter collegiatorios, etquod tamen magis est jus non decrescendi." This is manifestly true, for in thecase, by way of example, of a joint tenancy, the survivor does not take theother half of the fee by the death of his cotenant; on the contrary, he hadthe whole during their joint lives, and it is not decreased by the death ofthe survivor. They have not, one of them a seizin of one half, and the otherof the remaining half, but each has an undivided moiety of the whole, not thewhole of an undivided moiety. This is what causes joint tenancy to differ fromsubstitutions and remainders. In the latter, the survivor take that of whichhe had no seizin in the lifetime of the deceased. In the latter, one person issubstituted in place of another; in the former the person is not changed. Therule being thus understood, and such clearly is its true meaning, it has avery extensive application in the law. Two joint tenants are una persona, andhave unieum patrimonium, or one estate. So a corporation, a partnership, afamily, a state, are each one person and possess one estate in apprehension oflaw. Death does not decrease nor increase the estate, nor destroy the civil person.
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CHAPTER XIII - JUS ACCRESCENDI
To the citizen alone was the privilege accorded by the Twelve Tables ofdeclaring the testamentary law of his estate. Sovereign over his family, hisindividual will was the public law of the family, and prevailed over that ofthe family, the law of nature. This is also one of the distinctivecharacteristics of the Common Law. In the former, the identity of the civilperson of the ancestor and heir was rigorously observed, so that, in thelanguage of Papinian, una persona, unicum patrimonium. Hence, nemo potest proparte testatus pro parte intestatus. The testator named only one persona asheir, which, however, might comprehend several individuals, to whom his wholeestate passed per universitatem, as an entirety. Now in case one of theindividuals to whom the estate was devised deceased, the other took his share.Because the will of the testator, having in early times been a law made by anancestor in the assembly of the people, with their consent, repealed, as tohis family, the general law of succession, and of course repealed italtogether; so that, to obey this private law, no part of the estate couldpass to his next of kin. The share of the deceased was transferred to thesurvivor, to preserve at once the unity of the estate and effect the will ofthe testator. "Jus accrescendi est quia nemo simul testatus et intestatusrecte moriebatur Romae".
The Common Law has not adopted the rule that one cannot die partlytestate and partly intestate, although it has received the jus accrescendi.The Civil Law maintained much more rigorously the unity of patrimony, andhence preferred the legatee to the heir by blood; whilst the Common Law favorsthe latter, or the diversity of patrimony. The Gallo-Romans knew nothing oftestaments until the conquest by the Romans. There are, however, traces of acustom of transferring, in the lifetime of the testator, by way of sale, hisproperty to a devisee, but limited to those cases in which the testator had noheirs of his body. The heir by blood was always preferred to the devisee, anda difference as to the classes of persons to whom they should descend was madebetween paternal and maternal inheritances. This was perfectly consistent withan exception to the rule, Nemo potest pro parte testatus, &c., that had beenintroduced into the Civil Law by Caesar, and perpetuated by Trajan, namely,that a soldier might die partly testate and partly intestate. After this time,the rule was thus propounded: "Nemo potest pro parte, testatus, pro parteintestatus decedere, nisi sit miles cujus sola voluntas in testandospectatur." The object of this rule was to enable the soldier to dispose ofhis "peculium eastrense" to one person, whilst his other property passedeither to another legatee of a will made in solemn form, or descended to hisheirs by blood. The diversity of patrimony was in exact accordance with theGallic customs, so that when wills began to be used the military will wasselected. It became the fashion of making a testament, and was againtransmitted to the German tribes; for, as is said by learned Loysel, theycomme gens de guerre ont reeu plusieurs patrimonies et divers heritiers diunememe personne.
The Common Law has preserved the diversity of patrimony and the militarywill. But has also, as in all other instances, adopted the Civil Law rules ofinterpreting them. Hence, whilst the paternal and maternal inheritancesdescend to different heirs, yet, in reference to each class, the rule of jusaccrescendi, or the unity of estates, is adopted. Regarding each class initself, the rule is, Una persona, unicum patrimonium.
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CHAPTER XIV - USUFRUCTS
An estate for life is the lowest species of estate which requires liveryof seizin. Littleton classes it with a term for years. "And the lessor isproperty where a man letteth to another lands or tenements for term of lifefor terms of years, or to hold at will, he which maketh the lease is calledlessor, and he to whom the lease is made is called lessee." It was, however,regarded as a higher estate than terms for years, because the life estateconferred jurisdiction. A principality might be held for life, with dominionover its inhabitants. But in modern times, since the feudal system expired,and its traces in the law have been almost entirely obliterated form everyportion of it, and altogether from estates for life, courts have regarded themmerely according to their true nature. Setting aside all considerations as tojurisdiction, they have held that an estate for a number of years equal tothose of human life was equivalent to a life estate. A term for life is only aterm of tears equal to the duration of life. Supposing that terms for yearswere granted during the feudal age, the want of livery of seizin rendered thetitle insecure; the contract and its execution wanted the ordinary publicityof evidence of its existence. They were at the will of the parties, and mightbe annulled at pleasure. Hence they fell under the denomination of "precaria";but as society advanced, and writing came into use, they became contractscognizable in courts, whilst tenancy by sufferance and at will continued tobe, as they are now, precaria. But even as early as the time of Fleta, thatwhich was a tenancy at will, if verbal, was a term, if written; and dailyobservation shows that these precarious interests are now ripening into termsfor a year. Now we have seen that Littleton classes life interests with termsfor years, and that the law regards them as only equivalent to a term ofyears. We apprehend, therefore, that live estates, as well as terms for years,are properly usufruct interests in contradistinction to proprietary. They formthe highest in that class, whilst by their ancient attribute of jurisdictionthey unite the usufructuary class with the proprietary. Now a usufruct interest is a bailment, the relation of the parties that of letting andhiring, and in reference to property it is a chattel. The tenant for life hasthe rights and the duties which Domat states to be pertinent to the bailee; heshould put the thing to no other use than that our which it was hired, he mustcommit no waste, he must restore it at the time appointed, do the service orpay the rent, and, in general, observe whatever is required by law, custom, orthe contract. On the other hand, he is entitled to the profits. Thecorrectness of Littleton's classification, and the truth of our remarks, areshown in his seventy-first section. There he states that, "if a house beleased to hold at will, the lessee is not bound to sustain or repair the houseas tenant for term of years is tied." "For," says Coke, "the statute ofGloucester extends not to a tenant at will, and therefore for permissive wastethe lessor hath no remedy." Now by that statues the lessor had an action forpermissive waste against the lessee for life as well as for years. So that atCommon Law neither the tenant for life, years, not at will, was bound torepair. That these were bailments appears from the concluding sentences of thesections of Littleton above cited: "But if a tenant at will commit voluntarywaste, as in pulling down houses, &c., the lessor shall have an action oftrespass against the lessee. As if I lend to one my sheep to taothe his land,or my oxen to plough the land, and he killeth my cattle, I may well have anaction of trespass against him, notwithstanding the lending." And the reasonis, says Coke, that when the bailee, &c.
Now, it is apparent that a term of years, whether for life or for acertain number, is to that extent a diminution of the proprietors's usufructinterest in his estate. It is substantially a charge upon the principalestate, and, if no rent is paid, is of the nature of a vicum radium. Everyusufructuary interest is the use and enjoyment of the property of another. Nowthe difference between a right to a usufruct interest in another's land, for aterm of years equal to the duration of a life, and a right to use a part ofanother's land as a way for the same period of time, a right of way, is onlyin the mode of enjoyment. Both are usufructs, and both are onerous on theestate of the proprietor. A right to an easement may, according to its nature,belong to one or more individuals, or to one or more by virtue of theirconnection with a particular tenement. In either case the easement is a chargeupon the servient tenement, and a benefit to the parties enjoying it. Now therights of the parties entitled to the easement and the duties of the partiesentitled to the easement and the duties of the party subject to it areidentically those which we have seen pertain to the owner of a usufruct. Theone is entitled to a full and free enjoyment of the easement without let ofhindrance from the other, but he is not entitled to require the other, thebailer, or servient tenement, to repair. Thus the party entitled to a right ofway cannot, in general, require the other to repair; if it becomes"foundrous," he must repair it himself or cease to use it, for he cannot go"extra vias," and travel over the adjoining land of the servient tenement, nomore than the tenants of life could require the proprietor to repair. Thestatute of Gloucester, however, has altered the Common Law so as to compel thetenant for life to repair, but the owner of a right of way has not yet beencompelled by statute to do so likewise.
It is apparent, therefore, that the principles of the law which governsthat extensive class of rights, the usufructuary, including estates for life,for years, at will, and sufferance, and the multitudinous variety ofservitudes, are identically those of bailments. "I could not but observe withsurprise," says Sir William Jones, in his preface to the Law of Bailments,"that a title which seems the most generally interesting should be the leastunderstood and the least precisely ascertained. Hundreds and thousands of menpass through life without knowing, or caring to know, any of the numberlessniceties which attend our abstruse though elegant system of real property, andwithout being acquainted with the exquisite logic on which our rules ofspecial pleading are founded; but there is hardly a man who does not every daycontract the obligations of a bailment; and what can be more absurd ordangerous that frequently to be bound by duties without knowing the nature orextent of them, and to enjoy rights of which we have no just idea?"
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CHAPTER XV - EXECUTORY INTERESTS
Gradually, as the feudal law declined, uses and trusts advanced inimportance. Jurisdiction was lost in the fee, and became undistinguishablefrom it. The courts began to regard estates in reference to usufruct ratherthan to that which is of much more public interest, power. Regarding the lifeestates, as they were amply justified in doing, when disconnected withjurisdiction, as a mere chattel interest, a term for ninety-nine years washeld equivalent for the support of a remainder to a freehold. And on thisview, that estates are only usufructs, is founded the whole doctrine ofexecutory devices. "An executory devices is strictly," says Mr. Fearne, "sucha limitation of a future estate or interest in lands or chattels as the lawadmits in the case of a will, though contrary to rules of limitations inconveyances at Common Law." In a very early case it was held that a man mightgive a book (any chattel not consumed by use) to a person for his use duringhis life, and remainder over. Here, by distinguishing the usufruct from thelegal property, a limitation directly contradictory of the rule of law wasmaintained. But no man can have in the nature of things more than a usufructfor life of any property or any power. The construction by which he has powerover his estate after his death is not founded upon natural, but politicalreasons. It is the unity of jurisdiction that gives him the limitation to theheirs of his body, and declares that his heirs are so totally in him as acivil personage that he may give it to whom he will. Having, then,distinguished the usufruct from the legal estate, and thus avoided the rigorof the rule of law, all the canons of the doctrine of executory devises easilywere deduced. Thus, as no man can have more than an enjoyment for life, if theuse is limited to him and his heirs, and he dies, leaving no heirs living atthe time of his death, there is no reason why another should not be named bythe testator to succeed to the usufruct; or, as it is stated in the books, afee may be limited after a fee. But it is proper to observe, that the use ofthe word fee either as expressive of jurisdiction or right at law isaltogether erroneous; and, if taken in either sense strictly, would negativethe existence of executory devices. Another corollary from the usufruct is,that an interest may be limited to commence in futuro. Commonly this is termeda freehold, but with a like disregard of correct language. It is not afreehold, which is a legal estate, but a chattel interest, and hence isconsistent with the rule a Common Law by which a chattel interest may be madeto commence in futuro. And lastly, because it is a chattel interest, it needsno particular estate to support it; whereas, if it were a freehold whichrequired livery of seizin, it must have been preceded by a particular estate.There is another rule, that, where a limitation can be construed a remainder,it shall not be taken as an executory device; that is, where the testator doesnot express his intention clearly that his successors shall be regarded asusufructuaries, the public law attributes jurisdiction to the estates created.The public law must prevail over the private law of any subject.
The misuse of the word freehold, in reference to usufructuary interests,has led to the difference of construction between the limitation of dyingwithout issue, as applied to interests in lands and in chattels. It isadmitted now that this difference is against grammatical construction, and theintention of the testator. Hence the courts have resorted to other, andperhaps as doubtful, verbal criticisms to overcome or avoid former precedents.These are followed, where they are in point. It may be observed, that thewhole discussion no the rule in Shelley's case between Mr. Fearne and Mr.Douglas depends on the difference of the legal estate from the usufruct. Theirdifference, too, was merely verbal, the one contending for the intention ofthe testator, the other for the rigorous enforcement of the rule at law. Hadthey agreed at first, that they were or were not disputing about a legalestate or a usufruct, the controversy could have proceeded no further. Thetrue nature of the interest is manifestly the substance of the question.Moreover, by resolving the question into its true elements, we are enabled toplace the decisions, often seemingly contradictory, upon a solid foundation,and to reconcile them. The general law must be observed, unless the privatelawgiver, the testator, exercises his power to make an exception from it byhis own will, in such a clear and unequivocal manner as excludes doubt. So, inlike manner, where a person has a power granted by a deed, his exercise ofthat power must clearly and unequivocally refer to its source; and if it doesnot, it will either transfer only such interest as he possesses, or be utterlyvoid. In short, the rule in Shelley's case must be enforced, unless thetestator has otherwise directed; but the person affirming the exception toexist must prove it.
"The great and essential difference between the nature of a contingentremainder and that of an executory device consists in this; that the first maybe barred and destroyed, or prevented from taking effect by several differentmeans; whereas it is a rule that an executory devise cannot be prevented ordestroyed by any alteration whatsoever in the estate out of which or afterwhich it is limited." Certainly, when a limitation is admitted to be anexecutory devise, it cannot be barred; but that consequence of its nature doesnot, as Mr. Fearne states, explain its nature. It is a usufruct, the enjoymentof which depends upon a condition, and not a legal estate upon condition. Afeoffment cannot operate except on strictly legal estates, and in such casesas might possibly have existed at the time when they were made in open court.As to usufructs, they are inapplicable, and when a conveyance made in thatform has been recognized as of any validity of effect, it has been as a quasiconveyance under the statute of uses. The great and essential difference,therefore, between contingent remainders and executory devices is, that theformer are limitations of legal estates upon condition, and the latter arelimitations of the usufruct upon condition. A usufruct is a bailment, andthere is no rule of law or reason which forbids a contract for the creation ofa bailment at a future period, without a precedent bailment in some one else;not that a party may not enjoy a bailment to the end of his life, and thenthat it shall pass to another, or several others, upon condition; not thatanother may not, on a certain event, participate with the bailee in theenjoyment of it. In short, upon this fundamental distinction between legalestates and usufructs depend all executory interests in lands or in chattels.
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CHAPTER XVI - POLITICAL STATUS
Having traced the consequences in the law of real estate of theattribution to the landlord of sovereignty over his vassals or tenants, we arefurther to consider this principle in reference to personal rights. As hasbeen before observed, no one in the feudal age, and therefore in the CommonLaw, held lands because he possessed political rights; on the contrary, hepossessed political rights only because he was a landlord. Personal libertyexisted, but the man who had no more was not the ilber homo of Magna Charta.His condition was inferior to that of the landlord, and he stood in themiddle, between the lord and the villain. In short, the non-landholder had nopolitical status; he was not what we term a citizen. In the documents of theMiddle Ages, citizens were known as liberi homines, pares curiae, legaleshomines, and by various other titles, all of which meant that they were goodmen and true. These formed the basis of the whole organization, political,civil, and social and included every citizen, whether king or subject.
The importance of this element of sovereignty the status civitatis hasnot been sufficiently developed, nor perhaps appreciated, by our juridicalwriters. Accurate digests of all the cases have been made, but neither theirtrue reason nor the extensive ramifications of it seem to have beenunderstood. This has arisen, probably, from the defective method in which theyhave treated of every portion of the Common Law. From Bracton, inclusive, theyhave in regular succession followed the arrangement of the Institutes ofJustinian. In them, no notice is taken of the subject of citizenship, and foran adequate reason. By a series of laws, commencing at an early period of theRepublic, the status civitatis was gradually bestowed upon the whole Romanworld. An alien did not exist within its borders; therefore it was unnecessaryfor Justinian in a work intended merely to teach the neophytes of thelaw-schools at Berytum, Constantinople, and Rome, the rudiments of the law asit then existed to mention a subject only interesting to legal antiquarians.But it is far different in relation to the Common Law, and our writers have noexcuse for their perfunctory method of treating of it. We will consider itfirst as it concerns the state, and then as it concerns the individual and thefamily, and the rights of property appertaining to these relations.
It is necessary, for the elucidation of this topic, to premise a fewthings. In these States, every man has a right to vote, and thus toparticipate in legislation, without regard to his possession of property. Butunder the old Common Law, the right to impose taxes was confined to those whohad property to be taxed. It was against its fundamental policy to permitperson who did not share the burdens of taxation to impose them on hisneighbors. Representation was inseparable from taxation, and taxation wasalways connected with representation. We use these phrases, familiar to us atpresent, to express the same principle that was contained in the phrase, theattribution of sovereignty to property. Again, it is to be also observed, thatin every code of laws there are principles peculiar to that code, and otherscommon to all civilized nations. For instance, the attribution of sovereigntyto property was peculiar to our system; but the principles of the law ofpersonalty are almost universal. It has been the practice adopted generally bynations, to confine the right to hold a part of their territory to citizens,and this has not been supposed to be detrimental to any of their importantinterests; whilst to extend that rule to personal property would manifestlycut them off from the society of nations. Now, the law of personal property isthe law of nature, so far as it is cognizable in courts of justice. TheRomans, and after them modern civilians, termed it the jus gentium, by whichthey meant that body of rules which are generally recognized by all civilizednations as obligatory upon individuals. It must not be confounded with the lawof nations, or international law; nor, on the other hand, with that law ofnature of which moralists treat. Touching the latter, it is to be observedthat it is, as propounded by speculative writers, directly antagonistical tothe Common Law. The latter maintains, as its fundamental principle, thatproperty and its consequences, political power, are of positive institution.By it no man can affirm himself entitled either to property or power, exceptby the common consent of the state. The right to land does not spring fromoccupation, but from the grant of the state; nor has any man a right topossess a share of political power who has not previously obtained a share ofits territory. These principles are, beyond doubt, inconsistent with theopinions most popular in this country. It is not our office to defend eitherside, and therefore we omit further notice of them. Blackstone has termed thelaw of nature the will of God. This may be admitted. Cicero had anticipatedthis view; for he declares that he will not argue with any man concerning thelaw, who denies the existence of God, and that he is the source of laws. Butthe important question is, How is that will to be known? Those who think thathuman reason is the true test of that will, easily arrive at conclusions whichjustify disobedience to all human laws. Assuming a state of nature once tohave existed, in which all men were equal to all things were in common, it hasbeen without difficulty deduced that property is robbery. It is not a littleremarkable that the preachers of the law of nature include the most hostileclasses of writers, the Christian and Deist. But all of them fortify theirspeculations by citations from the writings of the Roman lawyers whoflourished under the Empire. At that time political rights were not onlytheoretically, but practically, denied, and no man save the Emperor couldassert a right to his life, liberty, or property. Yet these lawyers agreed inthese two fundamental propositions: "Quod ad jus naturale attinet omneshomines aequales sunt." "Ratio civilis jura naturalia corrumpere nequit."Their connection with the law of nature and its fruits, the doctrines whichvex modern European society, is very plain. How, then, is the law of nature tobe discovered? Revelation has disclosed to man the will of his Maker as to hisinternal life as an individual. His will as to nations, it is apprehended,will be discovered in those laws which prevail among civilized nations in allages. These are the moral facts demonstrating his providence as certainly asany physical facts. The one is the physical law of nature, by speculation,anticipates these results, it deserves applause, but it does not constitutethe test of their truth. They exist and are laws, whether discovered orundiscovered.
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CHAPTER XVII - JUDICIAL OFFICE
The author of Fleta Counsels the king, "Caveat sibi ne in sede judicandiquemquam loco suo substitnat inspientem et indoctum, corruptibilem velseverum." Can an alien sit in the seat of the sovereign? Whether sovereigntyresides in one or many, sovereignty becomes subject by the delegation ofjurisdiction to an alien power. The recognition by King John of the Pope ashis feudal lord, which includes jurisdiction, was felt to be, and was resistedas, a violation of the fundamental law of the state. Indeed, such a doctrinenever could have obtained the sanction of the descendants of the Normanconquerors. It is matter of history, that William took an oath to observe thenative laws, but he committed the administration of them to his Normans, andspeedily they were subverted. Jurisdiction could not, consistently with publicsafety nor the feudal law, be delegated to any but a member of the bodypolitic. Certainly, before the separation of jurisdiction from property, noalien could have been a judge. That foreigners, in the troublous years thatfollowed the death of the Conqueror, did occasionally occupy judicial places,is certain, but this was an incident of evil strife when laws were silent.Henry the First, in a capitulary, declared that "peregrimn very judicial,omnibus modis submovercuns." Such is the law of the present day; fivecenturies have produced no charge. The same is true also of every portion ofthe administration of justice. No alien can, by Common Law, be returned ofjuries for the trial of issues between the state and a subject, or betweensubject and subject. The jury de medietate is by statutory enactment. Theobjection that kings of England have been alien born, and have the power ofappointing judges, is of no force; for the descent of the crown is per se anact of naturalization, and removes all the impurities from the fountain ofjustice.
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CHAPTER XVIII - COURTS
Among the earliest changes in the feudal system was the creation ofcourts, in which the feudal lord did not exercise jurisdiction in person, butby means of his delegates. But this transference of jurisdiction made nochange in the principles upon which is was exercised. It was less summary,more formal, and more just. A feudal lord had jurisdiction only over his ownvassals, and his own land; without both were subject to him, he could notdecide the controversy. When the trial of causes relating to land was assignedto the court of Common Pleas, it also had jurisdiction only in case bothvassals and land were within the territorial limits. Hence, as the lord couldnot try a cause concerning land in another domain, neither can that court anejectment for lands in Ireland. Nor can it try a cause in which the kingprosecutes a criminal, for that has been assigned to another court. Nor canthe King's Bench try a land cause, nor a criminal whose offence has beencommitted out of the domain. In short, each court must possess competency asto persons and subject-matter, and all of them united possess all thejurisdiction that the feudal lord possessed. They are the delegates of thejurisdiction of the state. Hence, as they are delegates of the lord, theycannot derive jurisdiction from the consent of the litigants. They have it orhave it not as delegates of the sovereign. Just as the vassal of one baroncould not consent that his title to land in another baron's territory shouldbe determined by the former. Under the feudal law, the recognition of thejurisdiction of another baronial court than that of which he was one of thepares, would have been punished by forfeiture, for it was a denial of hisallegiance. Sequestration to compel appearance and foreign attachment bycustom are merely devices to compel an absent party to submit himself to thejurisdiction, and do not impinge on the principles already mentioned.
It was also a necessary consequence of the delegation of jurisdiction,that courts should so frame their modes of procedure as not to contradict thefundamental principle of their authority, competency as to jurisdiction and toproperty. It was not less necessary that this unity should exist in title toland, than in the court which was to determine a controversy concerning it.And this is equally true of all other courts, civil, maritime, naval, andecclesiastical. They must possess competency as to persons and subject-matter.The observance of this principle has been strict, and is discoverable in theleast important matters of special pleadings. Thus, in a real action, thevenue is said to be local, and must be stated to be within those territoriallimits which the ancient Court Baron, whose jurisdiction the Common Pleas nowexercises, formerly supervised. So, likewise, in personal actions, the venue,though transitory, that is, many be alleged of any place, must be of someplace within the territorial limits of the court. Jurisdiction over the personand the subject-matter must be united. It is apparent, therefore, that thesame principle of unity which forms the basis of the political and territorialorganization of the state, forms also the foundation of all courts, of theirforms and rules of procedure. It concerns the greatest questions that canarise, without disregarding so petty a technicality as whether a venue shallbe local or transitory. For the reasons already stated, the same controllingpower is exercised by it over courts having the adjudication of crimes, andthe imposition of forfeitures and punishments, their proceedings and theirforms.
The baronial courts never exercised what we term criminal jurisdiction.The distinction between public and private judges is found in the earliestperiod of the Middle Ages. Savigny has noticed the fact, that the compilationsof laws made by the various conquering tribes were criminal codes, with a fewprovisions as to rights of property. They reserved to themselves, necessarily,the administration of public justice. Masters of the country by right of thesword, they had, even according to the Roman maxims, the criminaljurisdiction. The count, or by whatever other name the chief was called,recognized no distinction between his follower and his subject, as to crime,both were equally under the power of the sword. Between them, as to offenses,the difference was only in the degree of punishment. Hence it is that thepublic law of the feudal age differs altogether from the private, not only inprinciple, but also in its forms of procedure. In the former there is not theslightest trace of Roman law, in the latter it is always discoverable.
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CHAPTER XIX - CITIZENSHIP
It is evident from what has been said, that the citizen or landholderheld, in relation to the non-landholder, a position of dignity andsuperiority. Savigny thinks that dignity is the proper word, and expressesaccurately the idea of citizenship in the feudal age. "Thus there was onedignity common to all freemen, and a higher dignity confined to the nobility.The words dignity and freeman correspond to those of caput and ciris optimojure among the Romans." He refers to the period of the Republic, when thepatricians were distinguished from the plebeians rather by the antiquity oftheir origin than the importance of their privileges, and when the name ofciris was common to all classes of citizens. This dignity was carefullyprotected from usurpation by rendering it impossible for an alien to become amember of the community, except by obtaining the solemn and public consent ofthe sovereign, of state. This sentiment of the dignity of citizenship was, aswe have seen, a striking trait in the character of the Germans, as well as ofthe Romans. The lord and the vassal, the noble and the plebeian, were equallyproud of it. We have three remarkable historical instances in proof of thisassertion. A barbarian, half naked and possessed of only the rudest arms,haughtily told Caesar, "Liberum se, libereque civitatis." The Apostle Paul,born of the despised race of conquered Judea, when about to be scourged by acenturion, said, "I am a Roman citizen," and "the chief captain when awayafraid." A Roman Senator, Scipio, the second Africanus, being interrupted inthe midst of a speech by the murmurs of a crowd of adopted citizens who stoodaround the tribune, struck them mute with the insolent exclamation, "Silence!ye bastards of Italy." The barbarian, the Christian Apostle, and the paganSenator equally felt proud because they "had inherited the ennobling qualityof original citizenship." We have quoted the words of a German who himselffelt this sentiment, and who of all men that have lived in modern times bestunderstood the character and history of Rome, Niebuhr.
This common sentiment of the dignity of the citizen led among the Germantribes, when they became landholders, to the establishment of rules for theprotection of this dignity identical with those used by the Romans. Thus theslightest infringement upon his land was a great wrong; it was a trespass,although the trespasser had merely walked over uninclosed land. His house washis castle, and upon no pretence could be entered without his consent, unlessthe highest public interests required it. It was his castle, because, say LordCoke and Gaius, "domus tutissimum cuique refugium atque receptaculum." Hisperson was sacred, and he might put his assailant to death in case his ownlife was in peril. Such, also, is the rule of the Civil Law as stated byGaius. A burglar might be put to death si nox furtum factum est, si eumaliquis occidisset jute cesus esto. A robber of a dwelling-house by day shallbe beaten with rods, si luci furtum faxit. A robber by day, if armed anddefends himself, may be killed, provided the assailed cries for help, si setelo defenset, quiritato, plorato que, post deinde, &c. In the early age ofthe Republic the creditor had what Lord Coke calls a personal lien, nexus, amortgage of the person of the debtor, and might, upon his default in payment,have kept him as his slave or sold him. The gambling debts of the Germans werefrequently paid in the same manner. The Common Law has adopted themodifications of the rule which was introduced in the time of Theodosius, bywhom it was declared that imprisonment of a debtor for the smallest space oftime was a full satisfaction: "Nec sane remuneratione precii debet exposcerecui, etiam minimi temporis spatio servitium satisfeeit ingenui."
The dignity of the baron, the citizen, protected his family; a wordincluding his estate as well as his wife, children, and dependents. Hence, todo an injury to his wife, either in person or character, or to 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. Except through him, theyhad no rights of which the law took notice. The jurisdiction over his vassalswas exercised by virtue of their possession of parts of his domain; but overhis wife, children, and servants, because they were part of himself.
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CHAPTER XX - ALIENS
It is commonly said that an alien has capacity to take a fee simple bypurchase, but not to hold it; and that he cannot even take by an act of law.The proposition would be more accurately stated thus: that by the Common Lawlands can be holden only by citizens. It is not sufficient that the person beinnocent of crime, or have paid the full value to the owner; he must also havethe status. Nor is the exclusion of the alien a penalty upon the person forbeing born out of the ligeance; nor after he has purchased is the escheat inthe nature of a forfeiture. On the contrary, in the judgment of law, thealien, so far as the holding of lands is concerned, does not exist, and theescheat takes place as if the last owner had deceased without heirs. It isindispensable that the person should be a member of the political community,free of the corporation, in order to enjoy any of its benefits. That land isholden only in virtue of political character is shown conclusively by thefact, that a native is not necessarily entitled to purchase and hold it. Aswhere a villain, who in the Common Law is called natirus, "purchases in feesimple on in fee tail, the lord of the villain may enter into the land andoust the villain and his heirs for ever; and after, the lord may, if he will,let the same land to the villain to hold in villainage." So, where a freemanheld lands by villainage, he had no political rights, did not participate inthe administration of justice by courts, and differed in no respect form avillain. On the other hand, a villain who purchased lands, and held them by afree tenure, was, except as to the lord, a freeman. The villain, bymanumission of his lord, became a citizen, as the alien does bynaturalization. In both cases they acquire status on the same principle,adoption into the political family. This appears from the comments of LordCoke upon the word enfranchisement: "it is derived from the word franchise,that is, liberty, and in the Common Law hath divers significations; sometimesincorporating of a man to be free of a company or body politic; sometimes tomake an alien a citizen, and here to manumise a villain or bondman." The alienmust receive the franchise of membership of the body politic. This could beobtained only with the consent of the sovereignty; that for the villain washis lord, for the alien, the state. A native freeborn man has now by theCommon Law the common consent of all the members of the body politic, thestatus as his birthright.
To hold lands, therefore, the person must be capable as well by thepolitical parts as by the jus gentium of the municipal law. By the former byparticipates in theory in the administration of the affairs of the state. Itis the union of jurisdiction and property which constitutes a perfect title toland. In the case of the alien these are severed, and hence he has no voice inthe formation or administration of the law. He is not one of the pares curiae,and therefore cannot institute an action real or mixed; but having the benefitof the jus gentium, he may institute a personal action. But even this wasdenied him in the early age of the Common Law. The foreigners who visitedEngland were generally merchants, and most of them Jews, and were save neitherin life, liberty, nor property. The thirtieth chapter of Magna Charta, it isbelieved, is the first statutory enactment by which alien merchants obtained"salvum et securum conductum exire da Anglia, et venire, et morari et ire, tamper terram, quam per aquam," to buy and to sell. It is printed in all theeditions of the statutes as of the ninth year of Henry II., but it is in facta transcript from the roll of 25 Edward I., who at that time confirmed it. Aslate, therefore, as Edward I., none but merchants could visit England withsafety. Other aliens, unless protected by a royal license, so far fromacquiring lands and becoming feudal lords, entered the kingdom at the peril oftheir lives. No habeas Corpus existed to release them from the dungeons of thenoble outlaw. Thus more than two centuries after the Conquest aliens weretreated as enemies. The only modification of the rigor of this rule that hasyet been made, is the permission of the alien to enjoy a lease of a house forhabitation. This, too, is a judicial inference from the above-cited chapter ofMagna Charta. So that, with this slight amelioration of his condition, thealien as to lands is as much under the ban of the law as when William theConqueror enacted that "omnes liberi homines" should swear to defend his"terras et honores contra inimocos et alienigenos." In all ages of the CommonLaw, therefore, only citizens have had the capacity for the full enjoyment ofall rights, political and civil.
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CHAPTER XXI - GUARDIANSHIP
The consequences of political status, as to the public and private rightsof the individual, having been noticed, it is now to be considered inreference to the family. Nations have differed greatly in their laws as topaternal authority, but the feudal law recognized the relation between thefather and his child only for political purposes. The father could not sellhim into slavery, nor put him to death, nor control his conduct when he becameable to do military service. As the heir apparent, he was treated withdeference by his father's retainers, but he was still only the first of hisvassals. It was as a vassal that he was known to the law. The duties of thelord to the vassal were to protect him in his person and estate. When thevassal, from any cause, could not render the services due, the lord mightenter upon his lands and take the profits, either temporarily or perpetually;the right was suspended or determined. Temporary suspension by reason of theinfancy of the vassal was wardship. Now it is manifest that the lord, king ornoble, held towards his minor vassal a paternal relation. Guardianship, whichby nature belongs to the father, by the feudal law belonged to the lord. Thelatter was entitled of right to the care of the person as well as of theestate of his young vassal. The person and estate, property and sovereignty,were inseparable, except in those instances in which the vassal held lands ofseveral lords. In such case possession of the person game priority of right toits care and control. Thus the lord had over him paterna potestas, and waswithin his domain parens patriae. This power controlled his nurture, directedhis education, his marriage, and thus, in a great measure, determined thecourse of his life. It is evident that, if an alien was the father, the lawdenied him every right that the law of nature confers upon paternity. Over theestate of his child he could nave no authority, not, as a consequence, overhis person. The family relations, therefore, depended for their existence uponthe approval of the public law. All human ties were as non-existent, wheneverthey came in conflict with the principle of unity of sovereignty and property.
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CHAPTER XXII - COURTESY
The guardianship of the wife by her husband necessarily gave him themanagement of her estate, and the enjoyment of its profits. It is only in anold and highly refined state of civilization that we discover traces ofseparate estates. The tenancy by courtesy unites, to a certain extent,guardianship and the institution of separate estate. This custom is said tohave been introduced into England in the reign of Henry the First. This isextremely improbable, for the custom was well known in Normandy before theConquest, and was too favorable to the husband to have fallen into desuetude.It may be that during that reign it first received judicial sanction; anopinion to which we incline, inasmuch as the cases referred to by ourjuridical writers are of a little later date. Traces of this custom may befound in the writings of the early portion of the Middle Ages. TheCapitularies of Dagobert I. (A.D. 630) expressly mention it: "Si quae mulierquae haereditatem parernam habet post nuptum praegnans peperit filium, et inipsa hora mortua fuerit, et infans vivus remanerit aliquanto spatio vel uniushorae, haereditas materna ad paterm pertinet," &c. The same passage is foundalso in the Code of the Alemanorum, which, according to Savigny, was copiedfrom the Bavarian. A capitulary was rarely limited to a single tribe, butusually extended to the whole people, and it is highly probable, therefore,that courtesy was generally prevalent.
According to this passage courtesy was only the lands which the womanderived from he father by descent. This is the interpretation given tohaereditas by Cicero: "Haereditas est pecunia quae morte alicujus ad quempiampervenit jure nec ea aut legata testamento aut possessione retenta."Inheritance, in short, is by descent. In like manner a Roman magistratepresiding in Gaul, in the fourth century, writes to his legal friends in Romethis surprising fact, Gignantur haeredes et non scribuntur. This definition ofCicero is also implied in the Common Law rule that heirs take by descent,jure, for where they may take as heirs, they cannot take by purchase, Theright by act of law jure is always higher than that by act of the parties.After the time of Cicero, haereditas received a wider signification, and meantinheritance acquired by devise as well as by descent. "Ac prius dehaereditatibus despiciamus, quarum duplex condicio est; nam val ex testamentovel ab intestato ad nos pertinent."
Courtesy is also mentioned, as we have observed, in the Bavarian Code,which was compiled A.D. 637. Savigny states that, in a multitude of passages,the imitation of the Roman law is evident, although the particular texts whichhave been followed cannot be indicated. He remarks, however, on the passagefrom the Bavarian Code, (which contains the custom of courtesy, and alsorefers to a provision for the wife after the death of the husband,) that herecognized in it two laws of Justinian, which grant to the survivor of thehusband and wife an equal provision out of the profits of the estate of theother, and he cites these laws, But he observes also, that, while the law ofJustinian allows this provision only in case the survivor is poor, theBavarian Code takes no notice of this circumstance.
It is not surprising, therefore, that courtesy should be found in thecompilation known as the Petri Exceptiones Legum Romanorum. This work issupposed to have been written in the latter part of the tenth century(950-1000 A.D.). It contains a systematic exposition of the law as it thenexisted, and in a great degree of the Roman law. These are the words ofchapter 33: "Si quis duxerit uxorem et dotem ab ea acceperit vivente uxorehabeat omnes fructs dotis propter onera matrimonii. Ea vero defuncta siquidemnullos ex ea havuerit liberos, integro jure, &c. Si autem ex ea filioshabuerit solum usum fructum habeat liberi autem proprietatem." Here, not onlyis the right of the husband to the enjoyment of the profits determined, butthe distinction between the usufructuary and proprietary interests isexpressly marked. It is noticeable, also, that Justinian allowed courtesy onaccount of the poverty of the husband; the Bavarian Code takes no notice ofthat fact, and the Petri Exceptiones gives the reason of the allowance ofcourtesy, propter onera matrimonii.
Glanville, it is to be supposed, knew the latter work, for he publishedhis treatise A.D. 1186. Yet he states that courtesy was confined to themaritagium, which is synonymous with dos, and in this respect is the same asthe phrase paternam haereditatem in our citation from the Capitulary. Nowmaritagium in the old Common Law books meant only "the lands which the wifebringeth in frank marriage." But it is not probable that Glanville used it inthat limited sense, unless we suppose that he, the chief justice of a Normanprince, was ignorant of the laws and customs of the Normans. If it was firstintroduced into England by Henry, he derived it from Normandy, and during hisreign Glanville wrote. We suppose, therefore, that Glanville used the wordmaritagium in a sense comprehending all the lands of the wife. The AncienCoutumier of Normandy allows courtesy in all the lands of the wife, toute laterre, of which she was seized at the time of her death. It is probable,however, that this contracted meaning of the word maritagium, as well as thenation that the husband could not be entitled unless he was poor, a lackland,did find acceptance among the civilians of that age. We say civilians, for thelatter idea was to be found in none of the customary codes, but was mentionedby Justinian, and only by him. To correct these errors, Bracton enters intodetails otherwise unnecessary. He propounds the rule thus, that the husband,whether he had or had not an estate, was entitled to courtesy if he married awife having "haereditatem, maritagium, vel aliquam terram ex causadonationis." Adding to this summary the word dotem (which is, however,synonymous with maritagium and therefore unnecessary to the sense), we have inthis passage an epitome of the three citations that we have made.
Further, the Capitulary recognizes the distinction between paternal andmaternal inheritances. By the Common Law if a man marries in inheritrix oflands in fee simple, who has issue a son, and the son enters as heir to themother and than dies without issue, the heirs of the mother shall inherit, andnot those of the father, for paterna paternis, materna maternis. Then, in theexample of courtesy put by Littleton, upon the death of the wife and theissue, the lands ought immediately to have descended to the heirs according tothe rule materna maternis. But, on the contrary, it is disregarded and anexception made in favor of the husband by courtesy propter onera matrimonii.The use of the word courtesy in the sense of a rule of law is not peculiar toblack letter; thus, "The courtesy of nations allows you my better, in that youare the first-born." When the reason ceased, where there was no issue, thenthe national sentiment, Dotem non uxor marito, concurred with the interests ofthe maternal heirs in enforcing an observance of the general rule of descent,materna maternis.
Such, then, is the origin of this doctrine, and the reason that tenancyby courtesy, to the requisites of its corresponding estate, dower, namely,marriage, seizin, and death, adds that of issue. As it does not differ fromdower in reference to jurisdiction, we shall postpone our remarks on thattopic to the chapter on Dower.
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CHAPTER XXIII - DOWER
There are four kinds of dower de la plus belle could be obtained only bythe judgment of a court, and its purpose was to prevent the division of landswhich were subject as a unit to military service. In like manner, there cannotbe partition or endowment of a castle held pro defensione regni.
Dower ad ostium ecclesiae is in fact a jointure, which after the death ofthe husband the wife may refuse, and be endowed at Common Law. Coke observesthat it could be granted only at the door of the church, because in this andlike matters the law requires publicity and solemnity. So in the early ages ofthe Common Law all feoffments were made in the presence of the pares curiae.Deeds executed by the parties were altogether unknown, for few of the priests,and fewer of the lords, could sign their names. But as the transfer was madein the presence of the vicinage, it had, as in cases of dowment ad ostium, allnecessary publicity and solemnity. To perpetuate the proof of these contracts,it was customary to make a memorial of them in the chartulary or ledger-bookof some adjacent monastery. Dowment made at the door of the church, under thepatronage of the guardian saint, was in all probability duly entered in likemanner by the priests. Mr. Turner has published such a memorial or marriagesettlement in his valuable History of the Anglo-Saxons. This kind of dower wasalso known in Normandy.
Dower ex assensu differs altogether from dower at Common Law. It is notassigned out of the husband'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 oflaw. It is, like the ad ostium, a jointure, and must be created by deed. Fromthe fact that a deed is indispensable, it is certain that it must be ofcomparatively late introduction into England. All the authorities cited byCoke are of the age of Bracton, about two hundred tears after the Conquest,and as that was the most flourishing period of the Civil Law in England, itmay also be inferred to owe its origin to that system. This species was wellknown to the Lombards, under the name of faderfium. The word of the LexRotharis, as cited by M. la Ferriere, are these: "De faderfio autem id est,dealio dono quantum pater aut frater dederit ei quando ad maritum ambulaverit."A.D. 643. The Franks also used this species of dower. Marculf, a Frank, and amonk of the diocese of Paris, compiled in A.D. 660 a book of forms. Among themis the precedent of a deed to create dower ex assensu, libellus dotis. Savignyrefers to this work as a "most precious compilation," containing indisputableevidence of the wide-spread influence of the Civil Law in the Middle Ages. Onthe other hand, all the Common Law writers on the ancient feudal tenures citehis formula as authority.
The Petri Exceptiones mention it under the name of propter nuptiasdonatio. Chap. 33: "Propter nuptias vero donatio, defuncta uxore, inpatrimonio mariti revertitur, et inter alios res ejus computatur." The AncienCoutumier of Normandy also contains the same law. Civilians are agreed thatthe ante-Justinian law prevailed during the Middle Ages, and that thecompilations of Justinian were unknown. The changes, therefore, which weremade in the character of the propter nuptias donatio did not affect theGallo-Roman provinces This donatio, says Mahlenbruch, existed originally apudorientes, and was introduced into the Roman law by Constantine, A.D. 319. FromRome in passed to the provinces, and was adopted by the German conquerors.Their works of mixed law have transmitted it to us.
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CHAPTER XXIV - DOWER AT COMMON LAW
Tacitus states that the custom of the Germans was, that the husbandendowed the wife; and in this respect they differed from the Gauls, whorequired mutuality of gifts, and from the Romans, who united the Gallic customwith that of the wife endowing the husband. But it must not be supposed thatTacitus, in the sentence often cited by our juridical writers, "dotem non uxormarito, sed uxori maritus," referred to dower at Common Law. For the nextsentence he states that the parents or friends of the wife were always presentto give their approval of the presents: "Ittersunt parentes et propinqui acmunera probant." It was, in fact, a jointure, and if not satisfactory, themarriage did not take place. Dower was known to them, however, under the nameof morgengabe, and to the Saxons as morgengift, both words meaning the gift ofthe morning after the marriage. The consummation of the marriage evidently wasnecessary, and our Common Law writers plainly state that is was the "praemiumpudoris." The Ancien Coutumier also gives the same reason; au coucher gague lafemme son donaire. The dower of the wife differed in quantity among thetribes, but the Franks, Burgundians, and Saxons allowed her one third part deomui re quam simul collaboraverunt, de eo quod vir et mulier simulconquiererint. It was originally the wife's share of the land which she andher husband had jointly labored for or conquered. Now the Germans in theirmilitary emigrations were always accompanied by their wives, and theirsettlements were made, not as soldiers, but as tribes. As long as the husbandand wife lived, they enjoyed together, to use the energetic expression of theSaxon law, their common conquest. Not only do their compilations of laws provethat this custom arose after their invasion of the Roman provinces, but itcould not have arisen before; for, as they had no private estates in land,there could be no dower. Indeed, their first appearance on the banks of theRhine was as fugitives seeking escape from more powerful tribes. When,finally, they broke into the provinces, it was still by compulsion, beingdriven onwards by adverse fortunes in the wars which seem always to have vexedthe regions whence they came.
The Normans seized upon a protion of France in the ninth century, aboutfour hundred years after the first invasion of the Germnan tribes. Theyadopted the customs of the Franks in a great measure, and allowed the wife onethird as her dower. Littleton, in his thirty-sixth section, has copied almostverbatim the ancien Costumier: "Coutume est que la feme qui a son mari mort,ait la tieree partie du fief au temps quil epousa."
All the tribes condemned marriage with an alien. In A.D. 370, theEmperors Valentinian and Valens prohibited, under the penalty of death, themarriage of citizens and barbarians. The rigor of this law was afterwards somodified as to permit such marriages with royal license. At length, however,Alaric became king of the Visigoths, and, assuming to himself and hisbarbarians the name of Roman citizens, revived the law in all its severity.His code declares that al lawful marriage can be contracted only between Romancitizens; "Legitimae sunt nuptiae, si Romanus Romanam," etc. Again, a Romancitizen cannot be in the power, as a ward, for instance, of homo peregrinaeconditionis. Indeed, the Breviarium only expresses the universal sentiment andcustom of the tribes. The full force of this prohibition can only be estimatedby considering that in that age, and long afterwards, the conquerors and theconquered had not amalgamated. They lived in the same villages, upon adjoiningfarms; met daily and traded together; were mutually indebted for the variousservices of civility and humanity that contiguity produces; but marriage wasimpossible. A want of status, whether by reason of alienage or bondage,rendered marriage infamous.
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CHAPTER XXV - MARRIAGE
If a man seized of a fee in lands taketh an alien to wife and dieth, sheshall not be endowed. Marriage, therefore, does not communicate to an alienwoman all the rights that it does to a native freeborn woman. Now Coke statesthat the only three requisites to entitle a woman to dower are marriage,seizin, and death of the husband; yet though the alien woman is married, andher husband hath seizin and dies, she shall not be endowed. It is clear, then,that the marriage meant is that between citizens. That there is an importantdifference between the marriage of citizens and that of a citizen and alien ismade very manifest by this: that if a marriage be avoidable by divorce inrespect of consanguinity, yet if the husband die before divorce, the wifeshall be endowed; for this is legitimum matrimonium, quoad dotem. Here we seethat an incestuous union, if not annulled in the lifetime of the husband, is alegitimate marriage de facto, not de jure, as to dower. But quoad dotem, thealien woman did not contract even a marriage de facto. In England divorce isexclusively within the jurisdiction of the ecclesiastical courts, and in thecase above stated the death of the husband prevented a sentence of divorce,death had anticipated ecclesiastical censure. Hence the judge returns acertificate of legitimum matrimonium. But the death of the husband absolutelydebars the alien wife from her claim of dower.
Bracton mentions the justum et legitimum matrimonium, but does notexplain or define it. Indeed, our juridical writers afford us no assistance.However, marriages, as we have seen by the citation from Coke, may be de factoor de jure, and of course there is a difference between them. In both casesthe parties must be able, willing and do consent. These may be termed therequisites of the jus gentium. Our system adds that of citizenship in everycontract relating to land. It is evident, then, that the legitimum matrimoniumcannot be contracted de facto or de jure by an alien. For marriage in eithercase would have conferred upon her a full participation on all the rights ofthe husband. That such was the result of a legitimate marriage appears fromthe definition of it in the canonical law: "Viri et mulieris congunctio,individuam vitae consusctudinem, cum divini et humnani juris communicatione,continens."
Furthermore, it is to be considered that, in the earlier ages of theCommon Law, land was almost the only species of property. To deny to the alienwife, therefore, any share of it, was a practical denial of all rights ofproperty. Yet this was done by a system which recognized the right to dower asnot only a legal and equitable, but also a moral right. So that the law didnot recognize her existence at all in any civil or moral capacity. Moreover,dower was avowedly allowed propter onera matrimonii et ad sustentationemuxoris, 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 or female, have thecapacity by the jus gentium to acquire lands, they are prevented by defect ofpolitical status. Being subject to the former, they may by descent of purchaseacquire that kind of property regulated by that law, personalty. Here, again,we recognize the principle of unity and the correspondence of persons andproperty.
The legitimum matrimonium of the Common Law is identical with theconnubium of the Civil. That could not take place between slaves, not a slaveand a free person, nor, except by license, between the alien and a citizen.Such, too, is the Common Law in regard to the first two instances. And as tothe last, we learn that, by a special act of Parliament, all women aliens whofrom thenceforth should be married to Englishmen by license of the king mightdemand dower. Connubium was also termed justum aut legitimum matrimonium,justae nuptice, in contradistinction to contubernium. The latter was notregarded as mere concubinage. It differed from connubium in this respect, thatit conferred upon the wife no political equality with the husband, nor anyparticipation in his religious observances of civil rights. On the other hand,connubium is exactly defined by the canonical definition of marriage. It waspeculiar to citizens. "connubium inter cives; inter civem autem et peregrinaeconditionis hominem aut servilis non est connubium sed contubernium." Themaxim of the Common Law, "Consensus non concubitus facit natrimonium," wasreceived as true only in reference to this species of marriage. But under theinfluence of Christianity, although the distinction between the civil contractand the sacrament was not entirely obliterated, the Church considered consentas marriage between an alien and a citizen.
As the connubium was peculiar to citizens, so was the marriage ceremonyof a corresponding character, There were three kinds of nuptial ceremonies,and two of them, usus and confarreatio, have some resemblance or analogy tothe practices of modern times. The usus was where the wife domiciled with herhusband for the space of a year, without being absent for three nights. Theother, confarreatio, was the most solemn, The marriage was contracted in thepresence of the father or guardian and of witnesses, before the altar, andaccompanied with a sacrifice by a priest. By this form the wife became subjectto the power of her husband, in manum reniebat. Hence the rule that heacquires the property of the wife, "quam in manum ut uxorem receperimus, ejusres as nos transeunt." Its coincidence in form and consequences with our modeon contracting lawful marriage is remarkable. In the early times of therepublic all citizens and priests used it alone. When, however, Grecianmanners had corrupted Rome, this, with many other ancient customs that had,fortunately for us, previously been adopted by the Germans, fell intodesuetude.
We apprehend, therefore, that an alien woman could not contract with acitizen justum et legitimum matrimonium either by the Civil or Common Law.Nor, indeed, by the canonical law, unless we suppose that, by the phrasehumani juris, only natural law is intended. That many be the correct view, asit is derived form the Justinian law, and in his age citizenship and humanitywere coincident. The jus gentium was the law of the Empire.
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CHAPTER XXVI - CONVEYANCES
There existed in the feudal law, as we have seen a correspondence ofpersons and property, the result of a attribution of sovereignty to the landedproprietor. The Germans, say Savigny, had a species of perfect property likethe dominium ex jure quiritium of the Romans. Of course he means that in theMiddle Ages, after their conquests, they had such property, for before thattime, as has been frequently observed, they had no private estates in land. Itcould be held only by citizens. "Aut enim ex jure quiritium unusquisquedominus erat aut non intelligebatur dominus." The ennobling quality ofcitizenship was his right to hold it. It is not surprising, therefore, thatcitizens should have peculiar modes of transferring this perfect property. TheCommon Law had only three original kinds of conveyance, feoffment, exchange,and partition. Exchange is, in fact two conveyances, and might therefore beproperly removed from the class of original conveyances. Our remarks on thesubject of feoffment are equally applicable to exchange.
Feoffment was known to the Romans and Gallo-Romans under the name of cessio in jure. The latter was employed to transfer, not only lands and thingssavoring of realty, but also slaves. Gaius gives the most precise directionsfor the mode in which it should be made. "in jure cessio hoc modo fit; apudmagistratum populi Romani velut Praetorem vel apud praesidem provinciae is cuires in jure ceditur rem tenens its dieit. Hunc ego (hominem, fundum) ex jurequiritium meum aio, deinde postquam hic vindieaverit, praetor interrogat eumqui cedit an contra vindicet. Quo negante aut tacente tunc eu qyuvubducaverutm ean ren addicit." This is the exact method in which a feoffmentat Common Law was made. It was executed in open court, the demandant orgrantee claiming a piece of land, the defendant or grantor by agreementassertion or being silent, and the magistrate giving judgment for thedemandant. The memorial which was made of the transfer was termed transactio,and had the authority of res judicata, for every person who could clam anyinterest in the land was one of the pares curiae, and in apprehension of lawwas present at the time the feoffment was made. His silence was consent. Hencethe consequences of this mode of conveyance, which destroys all contingentestates, limitations, and conditions.
When the feoffment was executed in a court of record it was termed aFine. That the feoffment was used to transfer incorporeal rights as well aslands is shown by this circumstance: that, in a suit for an sdvowson, thedemandent used the words of Gaius above cited. Mr. Reeves has given aprocedent of such a declaration.
Parition by decree of a court, or adjudicatio, was another species ofconveyance, peculiar to citizens. The action, "quae discitur familiaeheriscundae locum habety inter eos qui communem haereditatem, &c., et intercohaeredes ubi agitur de proparte sororum vel inter alios ubi res inter parteset cohaeredes dividi debeat," &c. The Roman Law had also an action de communidividudo, which differed so little from the former, familiae heriscundae, thatit was thought by the compilers of the digest unnecessary to treat of themseparately. "Adeo affines sunt, ut de his simul agere necessarium." Coke inthe above extract does not notice this distinction, and treats these twoactions as one. The Digest explains that the actio familiae is "actio quaecohaeredi adversus cohaeredes datur ut dividatur haereditatem. Actio autemcommuni dividundo est actio quae inter eos qui quascunque res praeterhaereditatem communes ac indivisos habeat datur ut illae res inter eosdividantur." At Common Law, as in the Civil, the actio familiae is exclusivelyapplicable to coparceners or coheirs. They derive their name from the factthat they may, whilst tenants in common and joint tenants cannot at CommonLaw, be compelled to make partition. The word heriscundce is a corruption ofthe word ercendo, the ancient form of coercendo, from coerceo, to compel.Gaius states that this action was derived from the law of the Twelve Tables,"de haereditatibus et de tutelis."
The Common and Civil Law continue in all the consequences of this mode ofpartition to be identical. Thus, there must be equality of partition, eachwarrants the share of the other. Where the property is indivisible it is givento one, subject to the payment to the other of the value of his share. In likemanner, both systems recognize partition by lot and arbitrament. Littletonmentions that other incident of partition known as Hotchpot. The Common Lawconfined it to land given in frank marriage. In the Civil Law it comprehendedevery advancement of the father to his child, and was known as the collatiobonorum. Domat discusses the whole subject with his usual ability andlearning.
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CHAPTER XXVII - POSSESSION
"To suppose a state of man," says Chancellor Kent, "prior to theexistence of any notion of separate property, when all things were common, andwhen men throughout the world lived without law or government, in innocenceand simplicity, is quite fanciful, if it be not altogether a dream of theimagination." The learned author then goes on to state, that occupancy is thenatural and original method of acquiring property in lands and movables.Certainly the Common Law rejects all such nations, and holds property to be ofpositive institution and not derived from any other source. Our system doesnot permit us to enter into the refinements which the modern civiliansdiscuss, as to the question whether occupation does or does not confer aright. All lands belong either to the state on an individual, and the occupantwithout title is a trespasser. The lapse of time will not bar the remedy ofthe former, but it will of the individual, and in the latter case only byvirtue of positive legislation. Until the remedy is completely barred, theoccupant is as much a trespasser as he was at the moment he entered upon theland. Moreover, the public law interferes not for the sake of the individual,but to preserve the public peace; the advantage to the occupant is incidental.There are questions growing out of the loss of remedy to the rightful owner,which, it is believed, have not yet been settled by judicial opinion. Thus,where a person by adverse possession can defend himself against the trueowner, if he dies without heirs, shall the land escheat to the state, or doesit revert to the former rightful owner? Is the right to the land extinguished,or only the remedy for its recovery taken away, by the statutes of limitation?In the analogous case of a debt, although the remedy may be barred, yet theright to the money, the consideration, still exists so far that a new promisewill receive the right of action. There are numerous other cases in which thesame rule is admitted. A principal difficulty in the way of considering theright as unextinguished is that interpretation of the statutes of limitationconcerning lands, which makes them, not only means of defence, but ofacquisition. But that view is founded upon the assumption that there is a lawof nature which justifies man in occupying lands within the territory of anestablished state. It is a law, however, that is not tolerated where thepublic is concerned.
The Civil Law recognized three kinds of occupation, that with just title,that with a supposed just title, and, lastly, mere tortious occupation. Bythat system these three classes had appropriate and specific remedies. And thedivision is manifestly not without some show of reason. But the Common Lawnotices only the first and last of them. The word possession is used by ourlegal writers to express, not only the occupation of a rightful owner, butalso that of a wrong-doer, the pedis possessor. But it is apprehended that itis properly applicable only to the former, and certainly has that grammaticalsense. The possessor, by whom is meant the rightful owner, has, 1. A right ofproperty; 2.Occupation by himself, or his agents or tenants. To acquire thefirst, contract is necessary; to acquire the second, investiture or livery.Livery is continually confounded with seizin by writers, but they differ asmuch as cause end effect; it is by livery that seizin is obtained. Thepossession of a feud is seizin, possession is synonymous with seizin. It is inthis sense that Britton states that a frank tenement is the possession of afeud.
The right of property, together with actual occupation, was notsufficient to make a frank tenement; investiture also was indispensable.Investiture was an act of sovereignty, whether is concerned the creation of aprincipality, a title of honor, or a tenancy in fee simple. It was the solemnand public delivery of the land, an approval of the contract by the sovereign,whether king or lord, in the presence of the peers of the person to whom itwas granted. Hence, if a person having acquired the right of property enteredupon the land without investiture, he was a trespasser. His entry might beclandestine, clam, secretly, and the remedy was, as Bracton states, a writ ofintrusion, which might be purchased when one ratione alicujus chartae enteredwithout livery. The Civil Law was in this respect identical with the CommonLaw. Bracton uses the very words of that system. Domat states, that if aperson who had acquired a title entered upon the land clandestinely, that is,without the knowledge of the person by whom opposition might be made, he was awrong-doer.
It is not unimportant now to have a correct knowledge of theseprinciples. For although the solemn form of investiture is no longer observed,yet the substance of it still remains. Inattention to them will certainly leadinto error. We will show this, and at the same time elucidate some of theleading rules of the law of descents. Mr. Reeves, in his History of the CommonLaw, a work of considerable authority, states that seizin was merelypossession, meaning thereby occupation. So that a tortious occupier hadpossession or seizin. Nothing can be more incorrect than this statement;feudal history and judicial authority contradict it. Again he states, "thatanother (possession) was a precarious and clandestine possession attended withviolence." Passing by the contradiction of a clandestine possession attendedby violence, he plainly confuses three different kinds of occupation, theprecarious, the clandestine, and the violent, precaria, clam, vi et armis. Thelast two, moreover, are acquired against the consent, and the first with thepermission, of the true owner. "Item est quaedam possessio precaria ut si quisconcesserit alieui habitationem," &c. To this class originally belonged, as wehave seen, tenants for years, at will, and by sufferance. It followednecessarily from this error, that Mr. Reeves should not understand, not onlythe rules, but the history, of the Common Law.
Another illustration of the consequence of neglecting the fundamentalprinciples of the Common Law will be found in the criticism of Mr. Stephens inthe explanation given by Mr. Blackstone of the maxim, "Non jus sed seisinafacit stipitem." The former remarks that the solution of the latter isunsatisfactory. The passage of Blackstone is in these words: "We must alsoremember that no person can properly be such an ancestor as that aninheritance of lands and tenements can be derived from him unless he hathactual seizin of such lands, either by his own entry," &c. Mr. Stephens saysthat the origin if this rule has never been satisfactorily traced, and that,though Blackstone's explanation may sufficiently show why the descent was notderived except from a person who had obtained actual seizin, yet it does notshow why the person seized was to be propositus or root of the descent inpreference to a purchaser who has obtained actual seizin. For instance,suppose this case: A dies seized, leaving B his heir; now if B dies withouthaving obtained seizin, the heir of A, and not of B, will inherit the estate.Here B, being next in blood, might obtain seizin, but, failing to do so, hedoes not become the propositus. If to this case we add another element, andsuppose that B, in his lifetime, conveyed his right to a bona fide purchaser,who enters into actual occupation, and then B dies, never having had seizin,Mr. Stephens informs us that the heir of A has the right to enter and ejectthe purchaser, and that the reason of this is unexplainable by himself or Mr.Blackstone.
The difficulty in the solution of the question consists solely in this,that, like Mr. Reeves, they confound seizin with actual occupation. Actualseizin is their phrase. But seizin consists of three things, the right ofproperty, actual occupation, and the consent of the lord. When a person hasseizin in this sense, he is the propositus. The purchaser in the case put hadthe right, the actual occupation, but not investiture; and without the latter,occupation with right did not constitute a good title. In the language of themaxim, "Non jus sed seisian facet stipitem." For example, suppose the case ofa tenant who conveys his feud to another; although this contract wasobligatory between them, the purchaser could not enter without the consent ofthe lord under whom the tenant held. Again, in the same way, and no other, isto be explained the maxim, "Possessio fratris de feodo simplici, facet sororemhaeredem." It is only necessary to observe that the phrase possessio de feodosimplici is a paraphrase of the word seisina. Now upon these two maxims nearlythe whole Common Law of descents depends. Mr. Brown in his work on the leadingmaxims of the law, mentions only one other on this branch, "Haereditas nonascendit." This implies the existence of the fires that we have noticed, andis only indicative of the person who may demand seizin. Misapprehension,therefore, of the true reasons of these maxims cannot but prevent satisfactoryexplanations of questions of law. "The reason of the law is the life of thelaw; for though a man can tell the law, yet, if he know not the reasonsthereof, he soon shall forget his superficial knowledge. But when he findeththe right reason of the law .... this will not only serve him for theunderstanding of the particular case, but of many others."
Investiture did not confer jurisdiction. The law attributed jurisdictionto property, and that without the intervention either of the donor or thedonee. The omission to distinguish between this attribute and the investiturehas conduced to, of it has not altogether produced, the confusion which wehave heretofore noticed as existing in the use of the word fee. After the lordhad created a limited estate, he still retained jurisdiction; and if wesuppose that the tenant of the limited estate made a subinfeudation, he alsohad jurisdiction over his sub-tenant. Thus, in regular succession from thesovereign to the lowest baron, jurisdiction belonged to the donor. Every feudwas a miniature copy of the state.
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CHAPTER XXVIII - RETROSPECT
The inquiry which we have made has exhibited the fact that the Common Lawin all its parts, political, civil, and social, rests upon the principle ofthe attribution of sovereignty or political power of the proprietors of land.They alone possessed a voice in the government, the right of representation,of imposing taxes, of holding high places. The non-landholder was impotent.Time has greatly modified this law, even in England; but property is stillthere the source of power. In this country much has already been done to takeaway all direct influence from property; its indirect influence, in the shapeof corruption, must continue, and history teaches us that it will increase, aspopulation becomes more dense. The utility of this change, from the direct tothe indirect, the wisdom of reversing the Common Law rule of attribution powerto landed property, are question without the scope of the present inquiry. Butit may be observed that, as the bottom, they really resolve themselves intothe question of the best form of government. A great statesman, latelydeceased, has stated with great clearness and force the arguments in favor ofthe concurrent majority, the union of numbers and taxation, power andproperty. His disquisitions are not, in this respect, novel in theory, butold, and approved by the experience of a great and happy and highly civilizedpeople. But in may, nevertheless, be utterly inconsistent with the verydifferent form of government under which we live. Right or wrong, it doespresent for our consideration the gravest question which can employ thethoughts of any people.
It is also to be observed, that in proportion as this principle hasceased to be practically operative in the law, will the legal system of theseStates differ from the ancient Common Law. We may continue to term it theCommon Law after the attribution of jurisdiction to property is no longerremembered except by antiquarians, but it will not be the Common Law. A Newsystem, having different basis, tendency, nature, and results, will grow up;and if it is cultivated with the aid of English books which recognize as afundamental principle what is rejected by us, our system must be bent from itsnatural tendency, and so be deformed. That American law may perhaps be bettercalculated than its original to protect man in the development of his moraland mental qualities. Under its shadow he may enjoy, in larger proportion thanhis ancestors, those blessings which good laws and good government defend, butdo not create. But these are not certain results. Even the advocates of humanperfectibility do not contend that an entire departure from the experience ofthe past is either desirable in itself or proper to attain their promisedcondition of perfection. They teach the possibility to human developmentreaching perfection, not the necessity of complete revolution, either inpublic or private law.
Moreover, the private law must, in a greater or less degree, beassimilated to the public. "At jus privatum sub tutela juris publici," saysLord Bacon. Then it is not less a momentous question to individuals, What willbe the consequence to private property of the recognition of the principlethat political power does not belong to property? Some bold theorists havealready announced the consequences; and, admitting it to be true that numbers,the majority, are the rightful owners of the power of the state, it will bedifficult to refute the inference that they may dispose of the whole state,and therefore of every part of it. Power is human will, applied to things iscreates property, and has the masterdom and disposition of it. Why, then,should the rightful owners of the power, the life, of the state, notparticipate in the property which sustains that life? Why should the state notfeed upon the property of the state? All men are equal, one generation cannotbind another, governments may be changed at pleasure, the majority can do nowrong. These are principles which seem not uninteresting to the possessors ofproperty. It is possible that the fundamental maxim of the Common Law isunjust to mankind. Certainly the architects of it did not intrust thepreservation of property to those who might have an interest in itsdestruction.
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CHAPTER XXIX - THE TENDENCY OF THE AMERICAN LAW
The British Colonies in North America were connected together by a commonallegiance to one crown, and in reference to it they were one people. Theirinternal condition also tended towards unity. From their first settlementsthey possessed the manners, knowledge, and refined modes of thought whichbelong to a highly improved state of civilization. They knew no barbarous agein which the grams of their institutions originated. They had brought withthem from the mother country the general principles of free government and theleading maxims of her jurisprudence. They all adopted them, with suchmodifications as a change of country required. No dissimilarities existed orgrew up among them, such as distinguish the Scotch or Irish or Welsh from theEnglish. The inhabitants were almost altogether alike, with some shades ofdifference in matters of religion; but sectarian dispute had never beeninflamed into civil strife. Hence, when they threw off their politicalallegiance, the Puritan and his antagonist, the Episcopalian, the RomanCatholic and the Huguenot fugitive from roman Catholic power, freely andvoluntarily pledged to each other their lives and sacred honor to accomplish arevolution that should establish a free government, which, whilst it toleratedevery form, denied, what each had aimed to attain, superiority to any form, ofsectarianism. This fact alone proves incontestably, that in heart, customs,laws, institutions, and political principles, the inhabitants of the provinceswere one people.
The Articles of Confederation, therefore, had no such difficult task toperform as had the laws of the Middle Ages, or if Edward the Confessor, toblend diverse gases, who had never before stood face to face but as foes, intoone harmonious people. The revolt of the Colonies disturbed, but did notdestroy, the internal governments and established laws of the States. TheArticles supplied partially the want of a common political tie. And whenexperience let to their abandonment, it was not because the internal, but theexternal, relations of the States required it. Undoubtedly, as they operatedonly upon the States in their collective capacity, and could not directlyaffect the people, they created a government weak at home and abroad. In legalformula, it may be said that the fiction of the unity of the federalgovernment had for its basis the fiction of the unities of each State. Thiswas the defect in the Confederation of 1871. The ninth article, which containsall the provisions of the settlement of questions between the States andbetween individuals, makes no alterations in the private laws of the States.These were unchanged.
The Constitution of 1787, which was intended to correct the defects ofthe Articles of Confederation, and to form a more perfect union, invests thegeneral government with jurisdiction over the States, and in certain casesover the people of the States. But is does not, nor was it its design to,alter the existing private laws of the state further than was necessary topreserve consistency between the public and the private law. The Constitutionis in fact the great stature of each State; an essential part of its privatelaw, and nearly the whole if its public law. It is the supreme law, but notthe fundamental law, in the sense of fons publici privatique juris. Itsenactment produced less change in the laws of a State, than Magna Charta didin the Common Law. Apart from political considerations. The questions reservedfor the exclusive cognizance of the courts of the United States were allwithin the competency, and might have been left to the decision, of the Statecourts. But the distinction between exclusive and concurrent jurisdiction wasmade, and the cases falling under either had may be ascertained, as has beenalready suggested, by reference to the ends and means of accomplishing them.
The direct influence of the Constitution, as a public statute, upon thelaws of the several States, has been much less than its indirect. The CommonLaw was recognized as the law of the land, but modified to suit thecircumstances of the people of the Colonies. The courts, however, untrammelledby local and customary rules, which were venerable only for their antiquity,or which by prescription had become property, were at liberty, and often werecompelled, to reinvestigate questions already decided in England, and for theproposes of inquiry to resort to foreign laws, universal reason, and colonialutility. Many, perhaps most, of the more eminent lawyers of the Colonies, downto the Revolution, were educated in England, and no doubt studied the CommonLaw, with the improvements which Lord Mansfield was then introducing. "It maybe observed," says Chancellor Kent," and with greater width of truth of thiscountry than of England, that a very large proportion of the matter containedin the old reporters prior to the English Revolution has been superseded, andis now cast into the shade by the improvements of modern times; by thecultivation of maritime jurisdiction; by the growing value and variety ofpersonal property; by the spirit of commerce, and the enlargement of equityjurisdiction; by the introduction of more liberal and enlightened views ofpublic policy, and, in short, by the study and influence of the Civil Law."The same causes, which were thus both in England and in the Colonies producinggreat alterations in the Common Law, received new energy and impetus from theConstitution. The law of the Colonies already conformed to a much greaterextent than that of England to the jus gentium. Now, as has been seen, theprinciple of the Common Law which attributes jurisdiction to property, anddenies it to those who are not landlords, renders the state a closecorporation. In England the principle had been so modified as to attribute ashare of jurisdiction to every native, but the alien, although encouraged tovisit the kingdom for the purposes of commerce, found so many difficulties inthe way of obtaining the privilege of citizenship, that he rarely asked forit. Their total exclusion practically preserved something of the spirit ofmunicipalism in the law, the state was still a corporation. The right ofmembership could be obtained only with difficulty, and generally only onpublic considerations.
But the Colonists had so little of the pride of citizenship in them, thatthey regarded England as their home, and America as a sort of decent asylumfor the poor. Emigration was universally encouraged, and lands granted withoutany previous probation. The Constitution accorded with the sentiments of thepeople; it did not declare what should constitute citizenship, it did notlimit Congress in its power to enact naturalization laws. Hence we havenaturalized citizens who have become such as individuals, after a probation offive years supposed to be passed in learning to love and admire ourinstitutions, and we have naturalized citizens who have become such asnations, having for our laws and institutions only such love as is felt by theconquered for the conqueror. When Congress, therefore, limited theprobationary period to ten, seven, or five years, a mere point of time in thelife of a nation, and also made citizenship depend entirely upon the pleasureof the alien to take it, citizenship ceased to be a privilege. This, with manyother proximate causes, but all ultimately referable to the severance ofjurisdiction from property, has carried the public and private law onwardtowards the entire abandonment of municipalism. The political consequences ofthe extension of citizenship to all who will become inhabitants of theseStates, are not within our consideration. But history is not silent, andfurnishes thoughts which deserve to be meditated upon.
In addition to these external and political causes of change in theCommon Law, there are others of an internal nature. Its history presents tothat of the Civil Law this contrast, that the Common Law is confined to theAnglo-Norman race. Whilst they spread their dominion over the face of theearth, they do not spread their municipal law. It is not the ardent desire ofany of their conquered subjects to be governed by it. Their own people, ascolonists, reject it. The inherent defect is its want of the power ofself-defence. Its municipalism is merely conservatism, and has no element ofprogress, and without their union nothing moral can be permanent. Self-defenceincludes the power to be offensive, to destroy the purpose ofself-preservation. But this is not the case with the Common Law of England. Itis modified by contract with other laws, but never has impressed upon any ofthem its peculiarities. Now this does not arise from any narrowness of theprinciples of the law of property, for these are not more English than Romanor French. But from the perpetuation of the principle, that to property alonebelongs jurisdiction, its political law. So, in the like manner, all that waspeculiar to Rome expired with the fall of the Republic, and that which wascommon to humanity, the law of nature, was perpetuated.
Another cause is, that the Common Law is eminently technical. In no otherknown system have formulas so powerful an effect. Fictions of the law are allequitable, and approve themselves to our natural reason; formulas areunmeaning except to those who have attained to "an artificial perfection ofreason, gotten by lang study, and observation, and experience." Thus, that anestate granted to a person with the word heirs annexed should create in him anabsolute inheritance, has no foundation in natural reason. Nor does thisformula admit of accurate translation into the common language of literature,Latin. The proof of this is given by Bracton: after stating a limitation to A,and haeredibus sui corporis, he informs us that they take by descent "quamvisquibusdam videatur quod ipsi feoffati fuerint cum parentibus; quod non estverum." The reason of this opinion that he condemns is plain. Those whothought that the heirs of the body took joint interests with their parent gavethe same meaning to these words, haeredibus sui corporis, that civilians giveto sui haeredes. The latter mean children, lineal descendants, and so heirs ofthe body naturaliter, and used in that sense the children would take jointinterests with their parents, as was decided in Wild's case. The error was innot perceiving that the limitation was a formula having a very differentmeaning from that which the words convey according to their idiomatic use. Sothe difference between the formula of a person dying leaving no issue, andleaving no issue living at the time of his death, is untranslatable, and evento the well-educated scholar of Continental Europe unintelligible. It ismanifest that formulas do not commend themselves to the natural reason ofmankind, and therefore cannot become the property of humanity. they are themere husks of the law. But as the peculiarities of the Common Law of realestate are formulas, they too are destined to continue exceptional, if they donot disappear even from that system.
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CHAPTER XXX - CONCLUSION
The analysis of the fundamental principles of the Common Law has beenmade. It has been shown that our system is not "a shapeless mass ofmaterials," as has been supposed by very eminent European jurists; and thatthere is a principle pervading in uniting together all parts of society, andcontrolling the state and the family, the beginning and the end of humanity;that the same bond which unites many in society unites two in marriage; thatin whatever light we view these, the chief relations of human existence,comprehending omnes omuium charitates, it may be said with the utmost truthand accuracy, both of society and of marriage, that each is omnis vitaeconsortium, divini humanique juris communicatio.
Our exposition has traced the rules of the law of real estate to themixed law of the Middle Ages. Occasion has also been taken to exhibit some ofthe more important analogies between the Common and Civil Law, and to indicatethe particular instances in which courts of justice and law writers wereobliged to adopt such rules of the latter as were not inconsistent with thepolitical principles of the former. The affinities of the two systems wouldperhaps justify a more extended examination, but it is sufficient to say thatit is a matter of well-founded surprise that the Common Law judges have sofrequently resorted to the Civil, and that it has been tolerated to so great adegree. For the hostility to the introduction of the Civil as the corpus jurisof England was most natural and proper, and the attempt by the clergyexhibited, not only their ambition, but their ignorance of the Civil Law andthe then existing condition of political affairs. As the Normans had no lawsuited to their condition at the time of their invasion of France, theyreadily adopted the mixed law. But it was far different three hundred yearsafterwards, when a portion of them, having established laws and well-orderedgovernment, took possession of England. then they had a code suited to theirnew relations, and therefore with ancestral pride adhered to it. The changethat was desirable, and that which they attempted, was to reconcile theirconquered subjects to the feudal law which they themselves could not abandonwithout ruin. Only the slow progress of time could extinguish the hatred ofthe Saxon to the Norman. But the latter had no national antagonism to theCivil Law; on the contrary, their Continental brethren received it, as theirpredecessors had done, as a subsidiary law to explain and interpret the mixedlaw. And so thoroughly were the Normans changed in their manners, laws, andlanguage by their conquest of Normandy, that they "were regarded both bySaxons and Danes as not only a different nation, but actually a differentrace. The historians of Denmark speak of the Norman conquerors of England as apeople of Roman of Latin race, and deplore the conquest as a triumph of theroman blood over the Teutonic." All the tribes that acquired permanentsettlements were alike transformed, and adopted the Civil Law, in the northernpart of France as subsidiary, and in the southern part as the lex scripta. Theconduct of the clergy, therefore, could lead only to failure. Their ignoranceof the true spirit of the Civil Law was equally manifest. No nation that hasever existed, no code that has ever been contrived, are so tolerant ofnational customs. The Pandects will furnish a multitude of passages in whichit is enjoined upon provincial rulers to respect local customs, and tomaintain them with their authority, unless political interests demanded theirabrogation. It was upon this very ground that the Northern barbarians soreadily adopted it. The alternative view was not presented to them, to abandontheir own customs and accept the Roman laws. It was in a similar spirit thatthe Conqueror agreed to tolerate the Saxon laws whilst he enforced his owncode. When, therefore, the barons rejected the proposition of the clergy toabandon their native customs, they responded not only in the language, but inthe spirit, of the Pandects. At the same time, our juridical history showsthat courts and writers daily and openly appealed to that code to aid them inthe interpretation of their laws.
Finally, I have endeavored to show that our system of jurisprudenceconsists of many subordinate parts, all of which are connected by beautifuldependencies, and each of them, as I have fully persuaded myself, is reducibleto a few plain elements, that will commend themselves to our natural reason,or be justified by the history and situation of our political ancestors. Butif the law be merely an unconnected series of decisions and statutes, its usemay remain, though its dignity as a science be lost. Reason must yield itssupremacy to memory, and the cantor formularum is the greatest of lawyers.
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