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V






THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



AMERICAN
LAW AND PROCEDURE



VOLUMES I TO XII PREPARED UNDER THE
EDITORIAL SUPERVISION OF

JAMES PARKER HALL, A.B.,LL.B.

Dean of Law School University of Chicago

AND

VOLUMES XIII AND XIV BY

JAMES DeWITT ANDREWS, LL.D.

FORMERLY OF THE LAW FACULTY
NORTHWESTERN UNIVERSITY

Author of "Andrews' American Law," Editor "Andrews'

Stephens' Pleading," "Cooley's Blackstone,"

"Wilson's Works," etc.



A Systematic, Non-Technical Treatment of American

Law and Procedure, Written by Professors and

Teachers in Law Schools, and by Legal

Writers of Recognized Ability.



PUBLISHED BY

LA SALLE EXTENSION UNIVERSITY
CHICAGO



-.1}



T
WI3



AMERICAN LAW AND PROCEDURE

VOLUME XIII.



JURISPRUDENCE AND LEGAL

INSTITUTIONS

BY

JAMES DEWITT ANDREWS

LL. B. (Albany Law School), LL. D. (Ruskin University)
Legal Writer and Lecturer



COPYRIGHT, 1910, 1911, 1912, 1913.

BY

LaSALLE extension university



CONTENTS

JURISPRUDENCE AND LEGAL INSTITUTIONS.

CHAPTER I.

Introduction.

§ 1. The practical utility of adopting a scientific method 1

§ 2. Scope of legal studies 3

§ 3. Method of treatment 6

§ 4. The scientific or institutional system 8

§ 5. The same : Views of American scholars 15

§ 6. Objects of historical and comparative study of law 19

§ 7. The first principle of logical science 21

§ 8. Origin and earliest manifestation of law 23

§ 9. The earliest foundation of government 24

CHAPTER II.
Principles of Right, Law, and Government.

§ 10. American law 32

§ 11. United States a leader in the science of government 33

§ 12. Right and law, jural conception 34

§ 13. Society is a natural condition 38

§ 14. The bases of government, conflicting views 39

Divine right of soverigns 39

Slavery affirmed to accord with natural law 40

Consent and representation 41

§ 15. The Roman system— The law of nature 44

The law of nature 44

§ 16. Slavery held contrary to the law of nature 46

§ 17. The origin of the compact theory 47

§ 18. Feudalism is in theory based on compact 48

§ 19. Limitation upon the freedom of contract essential to

liberty 51

§ 20. Early limitations on absolute sovereignty— Magna Charta. . 52

The Confirmatio cartarum 55

i



72844ft



ii CONTENTS

§ 21. The representation, of the people 56

Rise of the House of Commons 56

§ 22. The divine right of sovereignty revived in England 57

§ 23. Constitutional conventions in England. TransfeF of

allegiance 60

§ 24. The questions of the American Revolution 62

§ 25. The fundamental principles of government in the United

States 64

§ 26. Preservation of equality is the chief concern of govern-
ment and people alike 68

§ 27. Intelligence and integrity essential to liberty and law 69

§ 28. Distinctive features of American law 71

CHAPTER III.

Formal Jurisprudence.

§ 29. The practical utility of technical and formal jurisprudence. 73

§ 30. Jurisprudence defined 75

§ 31. Classification the essential process of jurisprudence 79

The utility of analysis 81

§ 32. Practicability and difficulty of analyzing our law 81

Lack of attention to method in text-book 82

Methods of codes 83

§ 32a. The utility of definition 85

§ 33. The principal heading for the outline 87

§ 34. New meaning of old words 88

§ 35. The beginning of legal analysis. Gaius 89

§ 36. Justinian and the institutes 91

§ 37. The principle of legal analysis 92

Classification cf the Roman Law 93

§38. Method of the institutes 93

§ 39. Blackstone's disposition of these subjects 94

§ 40. Universality of the principle of analysis 95

Critical examination of the principle 96

The rules for logical classification 97

§ 41. The universal system of classification 98

§ 42. Explanation and application of this theory 103

The rules governing governmental relations 103

Property law 104

Public protection and judicial remedies 104

Public offences and crimes 105



CONTENTS iii

CHAPTER IV.

Primary Classification of Subjects.

§ 43. Nature and uses of classification 107

Legal analysis explained 107

§ 44. Classification of legal treatises 109

§ 45. Legal analysis in American treatises 110

How legal subjects are classified HI

§ 46. The reason for and fallacy of Blackstone's primary classi-
fication H^

Blackstone's definition of municipal law examined 114

§ 47. The right-and- wrong clause condemned 117

§ 48. The definition no basis for classification 120

A false antithesis is made the ground for classification. .123

Supposed reason for the definition 126

8 49. Blackstone's primary classification not adhered to by him-
self 127

This classification was novel 128

§ 50. The confusion results from inapt use of words 128

§ 51. The right to redress in court is a right 130

§ 52. Municipal law defined 132

§ 53. Primary classification. The subjects of jurisprudence 134

CHAPTER V.

Personal Relations. Things. Actions.

8 54. Leading words defined. Fundamental ideas explained 135

§ 55. Suggestions on criticism, construction and interpretation. 136

§ 56. Meaning of leading words obscure 137

§ 57. Public and private law 138

§ 58. Ancient classifications 144

§ 59. Persons and things 144

§ 60. Rights of persons— Blackstone's meaning 146

§ 61. Austin's misstatement of Blackstone's meaning 148

§ 62. Different views of Blackstone's meaning 149

Blackstone 's explanation 151

§ 63. The law of persons in English jurisprudence differs from

the same in Roman law 152

§ 64. The legal conception of leading words 155

§ 65. The word "person" defined. Gaius says 156

Ortolan's explanation of personality 161



iv CONTENTS

§ 66. Scope of the word "thing" 165

§ 67. Ortolan 's explanation of ' ' things ' ' 167

§ 68. The division of subjects into rights and wrongs discarded. 169
§ 69. The agreement and divergence between Hale and Black-
stone 170

Origin of absolute rights 170

§ 70. Lord Hale 's treatment of status 171

§ 71. Lord Hale's conception of ''things" 173

§ 72. Substantial difference between Hale and Blackstone 174

§ 72a. The English conception of these words 174

§ 72b. The word "chose" unknown in Roman nomenclature 176

§ 73. The American idea of a right 177

§74. "Property" defined 178

National Supreme Court 178

The New York Court of Appeals 179

Illinois Supreme Court 179

New Hampshire Supreme Court 180

Missouri Supreme Court 181

§ 75. Concluding observations 183

CHAPTER VI.
Eights, Duties, Obligations, and Remedies.

§ 76. Importance and confused condition of the subject 184

§ 77. Remedies to protect and enforce are essential parts of the

definition of right and obligation 187

§ 78. The classification by civilians of rights as real and personal.190

Idea of personal and of real rights 190

The relation of right and oblig:. ion 191

§ 79. Various denominations of real rights and of personal rights.192
Jus in rem and jus in personam not of Roman origin .... 193
Absolute and relative right 193

§ 80. Same subject: John Austin's presentation 194

The distinction is an essential one 195

§ 81. The application of these distinctions in our law 196

Anomalous obligations 198

Ownership or property 201

§ 82. Right and obligation correlative; a right is a possession;

an obligation is a burden 202

Illustration and application 203

Use made of the distinction 204



CONTENTS v

§ 83. Absolute and relative rights 204

§ 84. AH rights are relative, not absolute 206

Blackstone's treatment does not justify the designation. .208

§ 85. Lord Hale did not recognize absolute rights 210

§ 86. Distinction between Hale's and Blackstone's treatment. .211
§ 87. Rights are secured, not surrendered, by creating govern-
ment 212

§ 88. Resume of the statements 215

§ 89. Civil liberty and Blackstone's absolute rights the same. . . .215

§ 90. Possible explanation of Blackstone's meaning 218

§ 91. Law relates to personal relations, things, actions 218

CHAPTER VII.

Magistrate and People.

§ 92. The public relations of men in society 221

Magistracy defined 221

§ 93. Magistrate and people. British and American view 226

§ 94. Classes of magistrates 228

§ 95. Magistrates in the United States 229

National and state officers 229

§ 96. Public persons 233

§ 97. The people of the United States 235

Officers are state and federal 235

§ 98. Definition of terms 236

§ 99. Society; natural and civil 237

§100. The people 238

§101. Government, magistrates, officers 238

§102. Double meaning of state 239

§103. Complexity of the state and national system 241

CHAPTER Vin.

The People.

§104. The people : Identity 244

§105. Capacity. Power. Sovereignty 246

§106. Early idea of sovereignty in English law 247

§107. The divided sovereignty of Blackstone's time 249

§108. Effect of declaring equality 251

§109. Extravagant claim of power at the beginning of the Ameri-
can Revolution 252

§110. Contrary view in America 252



vi CONTENTS

§111. How the people of the United States obtained supreme

power 253

§112. When allegiance was renounced all power returned to the

people 254

§113. The declaration of equality destroyed personal sovereignty. 255

§114. Consent of equals the basis of American law 257

§115. Legislative power not supreme or absolute 259

§116. Official power is never allowed as a personal right 260

§117. The people expressly limit their power 261

§118. All legislative power is limited 262

§119. The natural right of revolution is recognized 265

§120. The original consent required was individual consent. .. .265
§121. The right of expatriation allows the constant exercise of

assent or dissent 273

§122. All political action was taken in the name of the people. .274

The convention of 1787 acted in autre droit 276

§123. The sanction of the constitution was its adoption by the

people 276

§124. The act of adopting the new constitution violated the com-
pact of confederation between the states 277

§125. The autonomy of the states was preserved 278

§126. The relation of the people, the states and minorities 278

§127. Republican form of government described 279

The form of government is not democratic 280

§128. Limitation of all power 281

Constitutional amendments 282



CHAPTER IX.

The People of the State.

§129. Identity of the people 285

§130. States are essential constituents of the nation 286

§131. Position of the state as to independence 286

§132. A state cannot be sued by an individual except by consent. 287

§133. An individual contracts with a state at his peril 288

§134. Limitation on their mode of action 289

§135. The national constitution is supreme 289

§136. Amendments of state constitutions 290

§137. Nature of suffrage 291

§138. Voters are agents of the people, not rulers 291

§139. The new meaning of sovereignty 292



CONTENTS vii

§140. The method by which the people bound themselves 294

§141. Government of law established 295

§142. The fundamental principles of self-government 296

CHAPTER X.

The Public Domain.

§143. Growth of colonial union .300

§144. Epochs of the evolution of the national union 300

§145. Ante-revolutionary conventions 301

§146. Extension of the union 305

§147. Nature of the union during the revolution 305

§148. Territory ceded by the states 307

The ordinance of 1787 307

§149. Relation of the ordinance to the constitution 308

§150. On the admission of a state the ordinance became no longer

in force as to it 309

§151. The acquisition of foreign territory 309

Diverse views stated 310

§152. The doctrine of inherent power 311

The earliest statement of the doctrine of inherent power. 311

Rule for applying the doctrine 313

§153. The right to govern 315

§154. Title by purchase 315

§155. Annexation of independent countries 316

§156. Acquisition of disconnected territory 316

§157. The governmental power in territories 319

§158. Effect of change of government on political and private

law and civil rights 322

§159. Civil rights secure. Political rights there are none 324

§160. Colonial dependency may be continued. No territorial

government need be erected 325

§161. Effect of admission of a state on private titles to land in

the territory 325

§162. The partition of jurisdiction by admission 326

§163. Effect of transfer of title on permanent immovable

structures 327

§164. Status of Indian tribes 327

§165. Mineral lands. Acquisition and disposition by the govern-
ment 328

§166. Colonial possessions. Ancient policy and practice 330

Modern doctrine and decision 331



viii " CONTENTS

CHAPTER XI.

The Sources and Systems of Law.

§167. A government of law 334

§16S. The sources of law 335

§169. The supreme law of the land 336

§170. Legislative branch may be obliged to act 336

§171. The common law 337

§172. Unwritten or customary law 340

§173. Development of the common law 341

§174. Judge-made law 342

§175. Improper judicial legislation 343

§176. The rule Stare Decisis 346

§176a. Law must keep pace with the conditions of trade and

society 347

§177. The law merchant 349

§178. The maritime law 355

§179. Express adoption of the common law 363

§180. The national common law 363

§181. Where the question does not involve a state law 366

§182. Constitutional interpretations by common law 367

§183. Martial law 367

§184. Military law 368

§185. Ecclesiastical and canon-law 369



JURISPRUDENCE AND LEGAL
INSTITUTIONS



BY



JAMES DE WITT ANDREWS,

LL.. B. (Albany Law School)
LL. D. (Ruskin University)

Legal "Writer and Lecturer



CHAPTER I.
INTRODUCTION.

§ 1. The practical utility of adopting a scientific
method. Science simplifies. Nothing is scientific which is
not practical. The most practical methods are scientific.
What form is to the athlete science is to the student. In
fact, science as applied to the subject in hand discovers
the simplest way of acquiring an understanding of the
law and points out the line of least resistance in the
process of handling the mass of knowledge necessary to
obtain that understanding, and not the least important
thing is not to handle more than is necessary.



2 JUEISPKUDENCE AND INSTITUTIONS

The variety of phenomena and the infinite multitude of
individual units which make up the whole of any of the
subjects of learning do not by one whit increase the
genus or the species to which each individual belongs.
These are fixed by nature. The ewe and the ram are
types of the genus sheep— and the representative pairs
of the typical families are invariably reproduced in every
individual of the thousands that roam the fields.

It is the same with those things which, though having
no physical existence, envelope and permeate all that is
material. Nature presents endless rounds of repetition
surely to be counted on, and that with but slight variation.

A learned judge has said that science appeals to com-
mon sense for its adoption and Huxley tersely says
science is nothing but trained and organized common
sense.

The province of science is to render the least and the
greatest of these understandable and to subject all to the
domain of principles, rules, systems, and it is by these,
and exactly in the proportion to the progress in this that
1 ' man hath dominion over the earth. ' '

The Law, that body of rules which envelopes us and
which we can no more escape than we can elude thi air,
or ignore the changes of seasons, presents no excej_ on ;
its multitudinous details expressed by finite minds
through the imperfect medium of words and applied to
an infinite variety of acts may seem to those unacquainted
with the special science of Jurisprudence to present a
mere medley of accidents, a conglomerate mass devoid
of order. The poet speaks of "The Lawless Science of



JURISPKUDENCE AND INSTITUTIONS 3

the Law"— "A Wilderness of special instances"— but
not so— there are no Lawless sciences, the expression is a
paradox. Science itself is a law, or the law.

To all persons who acquire the few simple principles
of Jurisprudence and those primary and permanent ideas
which constitute the fundamental framework of all sys-
tems of law, the details of any system of municipal
law (1) are not intricate or hard to master. It is well
within the powers of the average mind— but many per-
sons make the mistake of seeking to comprehend the
mass of rules by a study of the infinite variety of special
applications without first obtaining a comprehensive view
of the subject as a whole and thus securing a clear under-
standing of the fundamental ideas which underlie and
control all mere rules and precedents.

One of our great teachers wrote that ' 'whoever finds
the main outlines of the law left obscure is almost certain
to neglect them, and to content himself with learning the
practical rules that he can commit to memory, without
any effort to understand them. He thus increases greatly
the amount of labor before him, if he does not preclude
himself from ever mastering the law as a system. It is
worth any amount of time and trouble ... to make
general principles plain" (2).

§ 2. Scope of legal studies. To one contemplating a
study of the laws of any of the modern nations, the task
may seem one of difficult accomplishment. When one con-



i By municipal law is meant the law of a particular state or nation,
not the law of municipal corporation, cities, towns, etc.
a Hammond's Blackstone Pref. XIX.

Vol XIII— 2



4 JURISPRUDENCE AND INSTITUTIONS

templates that many of our most familiar principles have
their origin in the distant past, and their development
and application illustrated by the incidents involved in
the history of almost every civilized country influenced
by Eoman and Greek civilization, the difficulty of obtain-
ing a familiarity with the principles of jurisprudence, or
the details of the system of actual law, naturally seems
so great as to be beyond the powers of the ordinary mind,
but this is not a true impression. Jurisprudence is a body
made up of an astonishingly small number of principles
and few details. The law of any country even with its
large number of rules is governed by a comparatively
few principles which in most cases are a guide to what
the rule will be.

The problem which confronts the author attempting
anything like a comprehensive exposition of American
Municipal Law is one requiring the constant application
of scientific methods, for it is only by these that this
seeming chaos can be given the order of a system, and be
made to assume, as it is in reality, a simple, knowable
system of rules.

The science which we invoke in this process passes
under the name of jurisprudence.

Like all of the sciences, jurisprudence is not the result
of a spontaneous growth, but is the result of slow proc-
esses of study, thought, reasoning, by which general prin-
ciples are discovered, and out of the multitude of single
instances general rules are formulated which become the
law applicable to like circumstance when they shall arise.

Mr. Justice Holmes very graphically pictures the scope
of the task which lies before the student of the law who



JURISPRUDENCE AND INSTITUTIONS 5

wishes to become a scholar, and then divests it of its
terrors by pointing out the manner in which this task
may with comparative ease be accomplished.

"The means of the study are a body of reports, of
treatises, and of statutes, in this country and in England,
extending back for six hundred years, and now increasing
annually by hundreds. In these sibylline leaves are gath-
ered the scattered prophecies of the past upon the cases
in which the axe will fall. These are what properly have
been called the oracles of the law. Far the most im-
portant and pretty nearly the whole meaning of every
new effort of legal thought is to make these prophecies
more precise, and to generalize them into a thoroughly
connected system. The process is one, from a lawyer's
statement of a case, eliminating as it does all the dramatic
elements with which his client's story has clothed it, and
retaining only the facts of legal import, up to the final
analysis and abstract universals of theoretic jurispru-
dence. . . .

1 ' The number of our predictions when generalized and
reduced to a system is not unmanageably large. They
present themselves as a finite body of dogma which may
be mastered within a reasonable time. It is a great mis-
take to be frightened by the ever increasing number of
reports. . . .

"Jurisprudence, as I look at it, is simply law in its
most generalized part. . . . The way to gain a liberal
view of your subject is not to read something else, but
to get to the bottom of the subject itself.

"Theory is the most important part of the dogma of
the law, as the architect is the most important man who



6 JURISPRUDENCE AND INSTITUTIONS

takes part in the building of a house. The most important
improvements of the last twenty-five years are improve-
ments in theory. It is not to be feared as unpractical,
for, to the competent, it simply means going to the bottom
of the subject. For the incompetent, it sometimes is true,
as has been said, that an interest in general ideas means
an absence of particular knowledge" (3).

Here it is clearly indicated that the first thing to ac-
quire is a grasp of the frame-work of principles which
is displayed by the outline of the law and upon this build
the body rules.

Another great suggestion made by Justice Holmes is
that the student avoid attempting to attain a knowledge
of all systems but apply himself to acquiring *\n accurate
anatomy of one system.

' ' The way, ' ' he says, ' ' to study a system of law is not
to study something else but to go right to the bottom
of the subject in hand." This sounds very simple, it is
simple and it is scientific, for, after all, science is only
common sense applied to existing conditions.

§ 3. Method of treatment. In every extended dis-
course, and particularly a discourse on law, there are
certain general principles, fundamental ideas and ele-
mental words which are implicated in the various parts
of the work, and in harmony with the foregoing pages we
will, before taking up the detailed treatment of the
various topics displayed by the outline, explain these
general principles and fundamental ideas. This method



3 The Path of the Law, Harvard Law Review, Vol. 10, 457, p. 1897.



JURISPRUDENCE AND INSTITUTIONS 7

of exposition is likewise the adaptation of tlie method
made use of by continental jurists and is recommended
by our best English scholars.

Sir Frederick Pollock and Professor Sheldon Amos
sufficiently describe this method and its effect. Pollock
says: "Another principle of division is that by which,
in dealing either with a whole body of law or with a
substantial department thereof, those principles and
rules which are found in all or most portions of the sub-
ject, so that they may be said to run through it, are dis-
posed of before the several branches are entered upon.
Such principles and rules may relate to the nature of
duties and rights in themselves, to the condition of their
origin, transmission, and extinction, or to the remedies ap-
plicable. The setting forth of these matters in advance,
so as to avoid repetitions and awkward digressions in
the subsequent detailed treatment is called after the Ger-
man usage, the General Part of the work in hand. In
the Special Part the several topics are dealt with in order
and the general principles having already been stated,
only those rules are discussed which are peculiar to the
subdivision in hand or are in some peculiar way modified
in their application to its contents. Thus Savigny's great
work on Koman Law is only the "General Part" of his
projected system. Well framed legislative acts on large
subjects usually proceed in some such manner from the
general to the special— thus the first six chapters of the
Indian Contract Act contain what a continental writer
would call the General Part of the law of contract;
namely, rules of law by which the formation, validity,



8 JURISPRUDENCE AND INSTITUTIONS

and effect of all kinds of contracts alike are governed in
British India. The other chapters which deal with sale,
agency and other species of contracts might be called
the Special Part of the Act. Notwithstanding the obvious
advantages of this method, it has only gradually and of



Online Library3d sess. United States. 53d Cong.American law and procedure (Volume 13) → online text (page 1 of 27)