William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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selves, the one to the other, to give or to do a certain thing agreed upon."
See the translation of the Partidas on Contractu and Sales, by Messrs. Moreau
& Carleton, New Orl^ns, 1820. The Partidas is the principal code of the
Spanish laws, compiled in Spain, under the reign of Alphonso the Wise, in
the middle of the 13th century; and it is declared by the translators to
excel every other body of law, in simplicity of style and clearness of expres-
sion. It is essentially an abridgment of the civil law; and it appears to be
a code of legal principles, which is at once plain, simple, concise, just, and
unostentatious, to an eminent degree.

(a) Rann v. Hughes, 7 Term Hep. ,350, note. Ballard v. Walker, 3 Johns.
Cos. 60.

^ Both express and implied contracts, says Mr. Story in his work on Con-
tracts, i 11» are founded upon the actual agreement of the parties. The only
distinction between them is in regard to the mode of proof, which belongs to
the law of evidence. In the case of an implied contract the law supplies
that which is presumed to have been inadvertently omitted by the parties.
Sec Ogden v. Saunders, 12 Wheat. 341; Thompson v. Hervey, 4 Burr. 2178;
Angell V. McLellan, 16 Mass. 31; Van Valkenberg v. Watson, 13 Johns. (N.
Y.) 488. If a man employs another to work for him there is an implied
promise to pay for the hire, yet the lalw will not imply a promise to pay for
services rendered by family connections. Butler v. Slam, 50 Pa. St. 456;
Duffy V. Dnflfv, 44 Id. 399; Smith v. Milligan, 43 Id. 107; Hartman's Ap-
peal, 3 Grant,* 271; Updike v. Titus, 2 Beasl. (N. J.) 151.



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The contracts of lunatics are generally void from the period at
which the inquisition finds the lunacy to have commenced (a).
But the inquisition is not conclusive evidence of the fact ; and
the party affected by the allegation of lunacy may gainsay it by
proof, without first traversing the inquisition (b). In the case
of Baxter v. The Earl of Portsmouth, the K. B. went quite far
towards annihilating the plea of lunacy in the case of
[ *451 ] fair * dealing; for they held, that the inquisition of lu-
nacy was not admitted to form any defence, on the
ground that the goods furnished by the tradesman were suitable
to the condition of the defendant, and that he had no reason to
suppose that the defendant was a lunatic (c). So, in Niell v.
•Morley (d), the master of the rolls held, that a court of equity
woiild not interfere to set aside a contract overreached by an in-
quisition of lunacy, if it was fair, and made without notice of the

The general rule is, that sanity is to be presumed until the
contrary be proved, and therefore by the common law, a deed
made by a person non compos is voidable only and not void; and
when an act is sought to be avoided, on the ground of mental
imbecility, the proof of the fact lies upon the person who alleges
it On the other hand, if a general mental derangement be* once
established or conceded, the presumption is shifted to the other
side, and sanity is then to be shown (e). The party himself may
set up as a defence, and in avoidance of the contract, that he was
non compos mentis when it was alleged to have been made. • The
principle advanced by Littleton and Coke (g), that a man shall

(a) Attorney-General V. Parklmrst, 1 Ch, Can. 112.

{h) Sergason v. Sealy, 2 Atk, Rep. 412. Faulder v. Silk, 3 Campb, K. R
Rep, 126. Baxter u. Earl of Portsmouth, 5 Barnw. <& Cress, 170, S. C. 7
Dow <& Ryland, 614. 2 Carr. & Payne, 178. Den v. Clark, 5 Halsted's Rep.

(c) See also, to S. P. Brown r. Jodrell, 3 Carr. & Payne, 30.

(rf) 9 Ves. 478.

(c) Swinh. part 2, ch. 3. sec. 4, 7. Attorney General v. Pamther, 3 Bro.
441. Lord Erskine, in White v. Wilson, 13 Ves. 88. Jackson v. YandascD,
5 Johns. Rep. 144.

(g) Littleton, sec. 405. Beverly's case, 4 Co. 123. Co. Litt. 247, a.

' A lunatic or his estate may be liable ex. contractu for necessaries supplied
to him in good faith. Pearl v. McDowell, 3 J. J. Marsh, 658; Sawyei ».
Lufkin, 56 Me. 308; Skidmore v. Romaine, 3 Bradf. 122; Richardson v.
Strong, 13 Ired. 106. Even for the costs of the proceedings in lunacy. Na-
tional Bank v. Moore, 28 P. F. Smith, 407; Abbott v. Oeal, 66 Iowa, 175;
Wildor V. Wheatley, 34 Ind. 181.



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not be heard to staltify himself, has been properly exploded, as
being manifestly absurd, and against natnral justice (a)/

The rule formerly was, that intoxication was no excuse, and
created no privilege or plea in avoidance of a contract (&); but
it is now settled, according to the dictate of good sense and com-
mon justice, that a contract made by a person so destitute of
reason as not to know the consequences of his contract,
though his incompetency be produced by intoxication, *is [ ^ 452 ]
void (c)»* This question was fully and ably ^nsidered
in Barratt v. Buxton (d) ; and it was decided, that an obligation,
executed by a man when deprived of the exercise of his under-
standing by intoxication, was voidable by himself, though the in-
toxication was voluntary, and not procured through the circum-
vention of the other party (e).

Imbecility of mind is not sufficient to set aside a contract when
there is not an essential privation of the reasoning faculties, or an
incapacity of undei^standing^ and acting in the ordinary affairs

(n) F. N. B. 202, D. Yates v. Boen, Sir. Rep. 1104. I^rd Holt, in Cole
r. Robins, BuIIer'a N. P. 172. Webster v. Woodford, 3 Day's Rep. 90. Grant
V. Thompson, 4 Conn. Rep. 203. Mitchell r. Kingman, 5 Pick. Rep. 431. Rice
r. Feet, 15 Johns. Rep. 503. In Baxter v. Earl of Portsmouth, supra, p. 450,
n. C/, Littledale. J., said, that a specially might be avoided by a plea of lu-
nacy, ifat the time it was executed the defendant was non compos mentis;
but that the rule did not apply to the case of necessaries supplied to a person
insane on some particular subject, and sound on others, though found by in-
quisition to have been of unsound mind when the contract was made. And
in Brown v. Jodrell, 3 Otrr. d- Payne, 30 S. C. 1 Moody & Malkin, 105, Lord
Tenterden would not allow a defendant to stultify himself in an action of
assumpsit for work and labour, unless he could show imposition in conse-
quence of mental imbecility. The point, whether unsound mind could be a
defence in the case of an unexecuted contract, was expressly waived in the
case of Baxter v. Earl of Portsmouth. The rule allowing a defendant to
stultify himself by plea, seems now to be confined to specialties.

(6) Co. Liil. 247, a.

(c) Lord Holt, in Cole v. Robins, Butler's N, P. Rep. 172. Lord Ellen-
borough, in Pitt V. Smith, 3 Camph. Rep. 33. 1 Slarkie's N. P. Rep, 126.
Sir William Grant, in Cooke v. Clay worth, 18 Ves, 12. Wade & Massay v.
Colvert, 2 3filVs Conn. R. 27. Ring v. Huntington, 1 lb. 162. Foot v. Tewks-
bury, 2 Vermont Rep. 97. Prentice v. Achorn, 2 Paiges Rep. 301 Burroughs
r. Richman, 1 Green's N. J. Rep. 23.*^. Harrison v. Lemon, 3 Blackf. Ind. Rep.
61. Hotchkiss v. Fortson, 7 Verger, 67.

(d) 2 Aiken's Vermont Rep. 167.

(c) Drunkenness rendered a contract void by the civil law. Pothier, TraitS
des Ohlig. 49. Heinecc. Elem. Juris. Nat. 1, 14, sec. 329.

* With regard to the question of sanity it is sometimes a very material
question that the sane party did* not know of the other's insanity. Craw-
ford V. Stovell, 13 Norris, 48; Shoulters v. Allen, 61 Mich. 529; Fecel v.
Guinault, 32 La. An. 91; Behrens & McKenzie, 23 Iowa, 333; Fay t;. Bur-
ditt, 81 Ind. 433.

» See Schramm r. O'Connor. 98 III. 539; Van Wyck v. Brasher, 81 N. Y.
260; Bates v. Ball, 72 111. 108.



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of life. This incapacitj is now the test of that nnsonndness of
mind which will avoid a deed at law. The law cannot andertake
to measure the validity of contracts bj the greater or less strength
of the understanding; and if the partj be compos mentia^ the
mere weakness of his mental powers does not incapacitate him (a)/
Weakness of understanding may, however, be a material circnm-
stance in establishing an inference of unfair practice of imposi-
tion; and it would naturally awaken the attention of a court of
justice to every unfavourable appearance in the case (b).^ Nor
is a person born deaf and dumb to be deemed absolutely non
compos mentis^ though by some of the ancient authorities he was
deemed incompetent to contract ( c ) . The proposition would seem

to be a reasonable one, that every such person was prima
[ *453 ] fade incompetent, inasmuch ^ as the want of hearing

and speech must exceedingly cramp the powers, and

(a) Osmoudv. Fitzroy, 3 P. Wtna. 129. Liord Hardwicke. Id Bennett v. Yade,
2 Aik. Bep. 324. Ball v. Mannin, 1 Dow'a K S. Rep. 380.

lb) Blachford v. Christian, Knapp*9 Rep, <m Appeals^ vol. i. p. 73.

(c) Brower v. Fisher^ 4 JohnB. Ch. Rep, 441. Bradon, de Exceplionihus, lib.
5, ch. 20. Ffeta, lib. 6, ch. 40. Bro. tit. E»cheai, pi. 4. The civil law also
held such afflicted persons to be fit subjects for a curator or guardian. Insi.
1, 23, 24. Ibid. 2, 13, 3. Vinnius dt Ferriere, h. t.

* Simply heing drunk at the time the contract is made, if the intoxication
does not extend to such a degree as to disqualify the mind to comprehend
the subject of the contract and its nature and probable consequences, does
not impair the contract. Morris v. Nixon, 7 Humph. 679; v. Hutch-
inson, Clarke (N. Y.), 408; Reynolds v. Dechamus, 24 Tex. 174; Caulkins v.
¥tj, 35 Conn. 1704; Henry r. Ritenour, 3Mnd. 136; Woods t». Pindall,
Wright (Ohio), 607; Pickett v, Sutter, 5Cal. 412; Cavender ». Waddington,
5 Mo. App. 457. See, hereon, Bush v. Breinig, 113 Pa. St. 310; and see 2({
Am. Law Reg. N. S. 40 n. where the English and American decisions
upon the question as to whether a contract made by a person when drunk is
void or voidable are collected.

^ A person habitually insane has power to contract duriAg a lucid interval.
Beckwith v. Butler, 1 Wash. (Va.) 224; Lily v. Waggoner, 27 111. 395; Tozer
V. Saturiee, 3 Grant Pa. 162.

Drunkenness, in order to disqualify, need not have been brought about
by the artifice of the other party. French v. French, 8 Ohio, 214; Donelson
V. Posey, 13 Ala. 752; Freeman v. Staats, 4 Halst. Ch. 814.

The modern law allows a person to^set up his insanity as a defence. Seaver
V. Phelps, 11 Pick. 304; Morris v, aay, 8 Jones (N. C), 216; Turner c. Burk,
53 Md. 65; Webster t>. Woodford, 3 Day, 90; Tolson r. Gamer, 15 Mo. 494.
Long 17. Whidden, 2 N. H. 435; Bensell v. Chancellor, 5 Wharton, 371.

Partial delusions on independent subjects will not avoid the contract.
Lozear t>. Shields, 8 C. E. Green, 509; Searle v, Galbreath, 73 111. 269.

The law may now be said to be settled as follows: A contract made by a
person who is drunk or of unsound mind so as to be incapable of under-
standing its efiect is voidable at that person's option, unless the other con*
tracting party did not believe, and had not reasonable cause to believe, that
he was drunk or of unsound mind. Northwestern Ins. Co. v. Blankenship,
94 Ind. 553; Riggan v. Green, 80 N. C. 236; Wireback p. Easton Bank, 1 Oat.
(Pa.) 543; Crawford v. Sewell, 13Norri8, 48.



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limit the range of the haman miacL Bat it in well knowii^ by
nnmeroas and affecting examples^ that persons deprived of the
faculty of speech and the sense of hearings possess sharp and
strong intellects, susceptible of extensiye acquirements in morals
and science (a).

If the contract be entered into by means of violence offered to
the will, or under the influence of undue constraint, the party
may avoid it by the plea of duress; and it is requisite to the
validity of every agreement, that it be the result of a free and
ho7U% fide exercise.of the will (6). If a person be under an arrest
for improper purposes, without a just cause, or where there is an
arrest for a just cause, but without lawful authority, he may be
considered as under duress. The general rule is, that either the
imprisoxunent or the duress must be tortious and without lawful
authority, or by an abuse of the lawful authority to arrest, to con-
stitute duress by imprisonment (c).* Nor will a contract be valid

(n) Mr. Justice Story, in his Ommmiarie^ tm Eqaiiy Juriftprudenee^ p. 227 —
245, has fblly discDssed the question, and examined the anthorities ]x)th in
the English and the civil law, which bear on it, respectinjf the relief afforded
in equity against contracts and other acts of person wholly or partially non
cofnpotes mentis.

ib) By the Scots law, force and fear annul engagements when they are
such as to shake a mind of ordinary firmness. Bctrn Principles of the Lmr nf
Scotland^ p. 5.

(c) Nicholls V, Nicholls, I Atk. 409. Thompson v. Tx)ckwood, 15 Johnson's
Rep. 259. Watkins v. Baird, 6 JKfaM. Rep. 511. Stouffer v. Latshaw, 2 WatW
Fenn. Rep. 165. Richardson v. Duncan, 3 N. H. Rep, 508. This last case
states, tliat even an arrest for a just cause, and under lawful authority, may
amount to duress, if done for unlawful purposes.

• At common law the coercion which will be a sufficient cause for avoiding
the contract may consist in duress or menace; either in actual compulsion or
the threat of it. In modern books the term is used to include both species.
It is said there must be some threat of life or member, or of imprisonment,
or some imprisonment or beating itself Threatening to destroy or detain,
or actual detaining property does not amount to duress. Bhepp. Touch., 61
Pollock on Cont. 587. In general the party exercising the duress is bound,
and the other has his election whether to abide by the contract or not. See
Veach r. Thomnson, 15 Iowa, 380; Clark v. Pease, 41 N. H. 414; Loomw r.
Ruck, 56 N. Y. 462.

Such a contract may be absolutely void if the party is under actual phys-
ical constraint, as if his hand be forcibly guided to sign his name; or per-
haps if he were so prostrated by fear as not to know what he was doing; but
this would be, not because his consent was not free, but because there was
no consent at all. Savigny Syst. 3, 109. But Matthews r. Baxter, L. R. 8
Ex. 132, is againflb this. Wl^en a contract is absolutely void for duress, there
is not, according to the following cases, decided in our own courts, even nn
imperfect consent, beause the entire lack of any yielding of the will evi-
dently leaves the formal contracting simply null. Singer Manf. Co. r. Raw-
son, 50 Iowa, 634; Nevada Bank v. Bryan, 62 Iowa, 42; Loomls v. Ruck, 56

The unlawful detention of personal property, or the threat to take it away-
37 VOI« 11. KENT. * 577


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if obtained by misrepreseDtation or conoealmeDt., or be founded
in mistake as to the subject matter of the contract. But the dis-
tinctions under this head will be considered at large in a sabse-
qiient part of the lectnre.

11. The lex loci cls to contracts.

Questions have frequently arisen on the effect to be priven to
foreign laws, when brought into view in discussions concerning
personal rights and contracts. The inquiry is, how are contracts
made abroad to be construed, and in what manner, and to what
extent, are they to be enforced and discharged, when the law of
the country in which they were made, and the law of the country
in which performance is sought, are in collision. The
[ * 454 ] subject iorms a secondary branch of the *law of nations;
and the rules by which such questions are goYemed, are
founded on the principles of general jurisprudence, and are in-
corporated into the code of national law in all civilized countries.
The principal events which produce a conflict in respect to per-
sonal rights and the distribution of property, between the laws
of the country where the judicial discussions arise, and the laws
of the place of the party's domicil, are, marriage, death, bank-
ruptcy, and the application of remedies. We have already ad-
verted to the subject, (though necessarily in the brief manner
which the nature of the present undertaking required,) in respect
to the effect of foreign suits and judgments (a); and in respect
to marriage (6), divorce (c), infancy (d), assignments in bank-
ruptcy (e), the discbarge of insolvent debtors (/), and the dis-
tribution of intestates' estates ig\ A further view of the doctrine

(a) Supra, p. 118. (6) Supra, p. 91, 183, 184. (r) Supra, p. 106—1 18.

(rf ) Supra, p. 233. \e) Supra, p. 404—408. (/) Supra, p. 392, 393.

(g) Supra, p. 67/428 — 434. Those universal personal qnalities, which the
)aw8 of all civilized nations consider as essentially affecting the capacity to
contract, as majority and minority, marriage or single, saneorlanaticiil, Ac,
are regulated by the lex domicUii, and travel with parties wherever they go,
as see past, p. 456.

unlawfully, although made under the forms of law. while it may not have
the effect ot duress, is deemed so far a compulsion that money paid to retain it
or regain possession may be recovered as not parted with voluntarily. Chaae
r. Dwinall, 7 Greenl. 134; People v. Vixher, 9 Cal. 366; Sartwell v. Horton,
28 Vt. 370; Harvey v. Olney, 42 111. 366; Litterrade v. Kaiser, 15 Ia. An.
296; Dakota v. Parker, 7 Minn. 267; Maxwell o. Griswold, 10 How. (U. S.)
242: Hendy v. Soule, Dready, 400.

Money paid to get control of goods lawfully attached on a just demand
<-annot be reclaimed. Kohler v. Wells, 26 Cal. 606; McMillan v. Yischer,
14 Cal. 232; Dickerman v. Lord, 21 Iowa, 338.



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will be nsefal, and cannot fail to be interesting to the student, in
its application to contracts at large; for questions arising on the
«x-territorial operation of statutes, usages, and judicial decisions,
are becoming frequent and delicate topics of discussion in our
American law.

A contract) valid by the law of the place where it is made, is,
generally speaking, valid every where jure gentium, and by tacit
assent The lex loci contractus controls the nature, construction,
and validity of the contract; and on this broad foundation the
law of contracts, founded on necessity and commercial conven-
ience, is said to have been originally established (a).° If the
rule were otherwise, the citizens of one country could not
safely contract, or carry on commerce, in the territories of
another. The necessary intercourse of mankind requires
* that the acts of parties, valid where made, should be [ * 455 ]
recognized in other countries, provided they bo not con-
trary to good morals, nor repugnant to the policy and positive
institutions of the state (&).

The doctrine of the lex loci is replete with subtle distinctions
and embarrassing questions which have exercised the skill and
learning of the earlier and most distinguished civilians of the
Italian, French, Dutch and German schools, in their discussions
on highly important topics of international law (c). These topics

(a) Ec hoc jure gentium omnea pene amfractus, introducH sunt — usu exigenie H
hnmanis nece9siiatibu». JruU. 1, 2, 2. Parde88U8, Droit Commereiaf^ tome v. p.
1482. Trasher r. Everhart, 3 Gill, d- Johns. 2M. Pickering c. Risk, 6 Frr-
moni Rep. 102. Slory^s Com. on the Conflict of Laws, p, 201, 202. Rectoret imperi-
omm id comiier agunt utjura cujtisque populi intra lerminos ejus exereita, tene-
nni ubique 9uam vim, quatenus nihil potentati auijuri alter ixta imperaniis ejuaque
eiiium pYsejudieatur. Huber, De Conflictu Legum, tit. 3, aec. 2.

(6) This principle of public law, saysToullier, (Droit. Ciinl, tomex. art. 80,
n..Hs well explained and enforced by M. Bayard, in' the Nouvelle Collection
de Jwriaprudencey tome ix. 759: and which he undertook in conjunction with
M. Camus.

(c) Among the hosts of jurists who have displayed their research and
acnteness on these subjects, the most pre-eminent are, Dumoulin, D* Argentre,
Bnrgnndua, Kodenburgh, P. «& J. Voet, BouUenois, Bouheir and Huberus;
and their respective doctrines, pretensions, and merits, were critically and
ably examined by Mr. Liverniore, t)f New Orleans, in his Di^ierlntion on
Personal and Real Statutes, published in 1829 — a work which is very credita-
ble to his learning and vigorous spirit of inquiry. A curious fact is men-
tioned by Mr. Robertson, in his Treatise on the Daw of Personal Succfftsion.

* If the contrary does not appear, the place of making of a contract is
presumedly that of its performance, by the law whereof it is to be inter*
preted and its effect defined. Benners v. Clemens, 8 P. F. Sm. 24; Hvatt r».
Bank of Ky., 8 Bush. 193; Cook r. Moffat, 5 How. (U. S.) 295; Milwaukee
R. W. V. Smith, 74 V\. 197; Oregon Trust Co. v. Rathbun, 6 Saw. 32; U. a
Bank v. Donnelly, 8 Peters, 361.



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were almost unknowD in the English courts, prior to the time of
Lord Hardwicke and Lord Manstield; and the English lawyers
seem generally to have been strangers to the discassions on for-
eign law by the celebtated jurists in continental Europe. When
the subject was introduced into Westminster Hall, the only work
which attracted attention, was the tract in Huber, entitled De
Conflictu Legum, and which formed only a brief chapter in his
voluminous Prelections on the Roman law: and yet it appears
that the very great diversity of laws and usages in the cities, pro-
vinces and states of Germany, Holland and France, had produced

far more laborious investigations on the subject (a). In
[ * 456 ] the w6rks of the civilians on * the continent of Europe,

the application of the law of domicil or the lex loci on
the one hand, and the lex fori or rei sitce on the other, is made to
depend on the distinction between real and personal statutes.
According to the understanding of an American lawyer, a statute
means an express act of the legislature of the country; but the
jurists educated in the schools of the civil law, apply the term
statute to any particular municipal law or usage, though resting
for its authority on judicial decisions or the practice of nations.
A personal staiute is a law, ordinance, regulation or custom, the
disposition of which affects the person, and clothes him with a
capacity or incapacity, which he does not change with every
change of abode; but which, upon principles of justice and policy,
he is assumed to carry with him wherever he goes. A real sta-
tute affects things as used in contradistinction to persons; and
their operation is necessarily confined within territorial limits, or

He says, that of the ninety-one continental writers on the sabjert of the
Conflict of lAttm^ quoted or referred to by the American jarists, Liverroore
and Story, a large proportion of them was not to be found in the public law
libraries in London, but all of them, except six, were to be met with in that
admirable repertory of books of law, the library of the faculty of advocates
in Edinburgh. Mr/ Livermore, while a practicing lawyer in New Orleans,
had collected from continental Europe, most of those rare works as part of
his valuable law library, and which librfiry he bequeathed by will to Har-
vard University in Massachusetts.

(a) The foreign treatises of most interest on the doctrine of the lex loci,
in addition to that of Huber, are understood to be Rodenburgh's Tmctahut
de Jure quod Oritur ex Statuforum Ditersitate^ P. Voet^s De StaftUis Eorumque
eonairauy Hertius' De Coltimone Legum, and G. G. Ti tins' De Oonfiidm Legum.
Mr. Henry published at London, 1823, a TreatiM on Foreign Law, and par-
ticularly on the difference between perwmdl and real statutes^ and its effect omfo9^
eign judgments and contracts, marriages and wills. In that treatise he shows
himself to a master of the foreign works on the subject; and he bestows par^
ticular commendation on the treatise of Rodenburgh.



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ad locum ret sUcr (a). According to this distinction, laws regu-
lating the marriage and nuptial contracts, divorce, the period of
infancy, and the disposition of personal property, are personal
statutes; while laws regulating the descent, transmission and
disposition of real property, and the nature, extent and liuirta-
tion of civil remedies, are real statutes. But the
* difficulty with the civilians has been to draw a clear, [ * 457 ]

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 74 of 108)