Skip to main content

Full text of "Legal essays"

See other formats 


LEGAL   ESSAYS 


AX 


LEGAL   ESSAYS 


BY 


JAMES  BRADLEY  THAYER,  LL.D. 

LATE    WELD   PROFESSOR    OF   LAW    AT    HARVARD    UNIVERSITY 


HUMPHREY    MILFORD 

OXFORD     UNIVERSITY     PRESS 

LONDON   EDINBURGH    GLASGOW    TORONTO 

MELBOURNE     CAPE    TOWN    BOMBAY    CALCUTTA 


Cojyyright,  1908 
By  Ezra  Riplky  Thayer 


PRIXTKn  IN  THE  UNITED  STATES  OF  AMERICA 


PREFATORY  NOTE 

At  the  time  of  his  death  Professor  Thayer  was  actively 
at  work  on  a  second  volume  on  Evidence.  This,  as  he 
said  in  the  introduction  to  his  "  Preliminary  Treatise  on 
Evidence  at  the  Common  Law,"  was  to  be  similar  in  form 
to  the  Pieliminary  Treatise,  but  " of  a  more  immediately 
practical  character,  giving  a  concise  statement  of  the 
existing  law  of  evidence."  He  hoped  to  finish  the  book 
within  a  year,  and  he  meant  then  to  publish  a  single 
volume  on  Constitutional  Law  resembling  the  Prelim- 
inary Treatise  in  its  form  and  general  scope.  He  had 
collected  much  material  for  both  books,  but  it  was  not 
in  shape  for  publication,  and  to  one  who  knew  the 
standards  which  he  set  for  himself,  and  his  ceaseless 
labor  in  revising  and  perfecting  his  work,  even  when  it 
seemed  most  complete,  the  attempt  to  shape  his  matter 
by  another  hand  would  be  little  short  of  desecration. 

It  appears  from  notes  in  his  diary  that  he  also  had  it 
in  mind  in  the  meantime  to  collect  in  book  form  some 
of  the  essays  which  he  had  prepared  on  many  different 
occasions.  The  shape  in  which  these  were  left  makes 
this  work  possible  after  his  death,  and  it  is  of  special 
value  from  the  fact  that  much  of  the  material  Avhicli 
would  have  gone  into  the  proposed  treatise  on  Consti- 
tutional Law  may  be  found  in  these  essays.  Thus  in  a 
measure  they  preserve  the  fruits  of  his  long  and  deep 
study  of  constitutional  topics. 

Some  of  the  essays  were  prepared  for  oral  deliver}', 
and  in  some  cases  for  non-professional  audiences.  In 
these  Professor  Thayer  would  probably  have  made  sub- 


VI  PREFATORY   NOTE 

stantial  changes.  Otliers  were  published  many  years 
before  his  death,  and  to  these  lie  would  certainly  have 
made  valuable  additions  as  the  result  of  his  later  studies. 
That  indeed  could  be  safely  assumed  of  all,  however 
careful  their  preparation. 

I  am  fully  aware  how  far  my  work,  even  in  merely 
collecting  what  has  already  been  publislied,  must  fall 
short  of  what  would  have  come  from  my  father's  hand. 
And  I  have  also  had  some  painful  doubts  whether  he 
would  approve  of  publishing  some  of  the  articles  at  all 
in  their  present  form  without  his  revision.  But  it  has 
seemed  to  me  on  the  wliole  that  with  an  explanation, 
whicli  I  have  undertaken  in  each  instance  to  give,  of 
the  date  and  circumstances  under  which  they  were 
written,  their  publication  is  justified. 

I  have  made  no  changes  in  the  articles  except  in  the 
case  of  clerical  errors  and  the  like,  which  Professor 
Thayer  had  corrected  in  his  own  copy.  All  notes  which 
I  have  added  are  enclosed  in  square  brackets.  Most  of 
the  matter  so  added,  and  all  which  shows  the  result  of 
study  or  research,  is  taken  from  memoranda  of  Professor 
Thayer's  on  the  margin  of  his  copies  or  in  his  collections 
of  cases. 

Whenever  the  article  has  already  appeared  in  a  maga- 
zine or  periodical,  the  name  of  the  publication  is  stated 
hereafter.  Such  articles  are  now  reprinted  by  the  kind 
permission  of  the  publishers. 

I  am  indebted  to  my  friend  Edward  Brinley  Adams, 
Esq.,  for  the  index  and  table  of  cases  and  for  much  help 
in  seeing  the  book  through  the  press. 

EZRA  RIPLEY  THAYER 

Boston,  December,  1907 


TABLE  OF  CONTENTS 

Page 

Table  of  Cases ix 

HE  Origin  and  Scope  of  the  American  Doctrine  of 

Constitutional   Law 1 

Advisory  Opinions 42 

Legal  Tender 60 

A  People  without  Law 91 

Gelpcke  r,  Dubuque;  Federal  and  State  Decisions  .  141 

Our  New  Possessions 153 

International  Usages.  —  A  Step  Forward      ....  181 

Dicey"s  Law  of  the  English  Constitution     ....  191 

ISedingfield's  Case  —  Declarations  as  a  Part  of  the 

Res  Gesta 207 

"Law  and  Logic" 305 

A  Chapter  of  Legal  History  in  Massachusetts   .     .  310 

Trial  by  Jury  of  Things  Supernatural 325 

Bracton's  Note  Book 355 

The  Teaching  of  English  Law  at  Universities  •  .     .  3C7 

Index 389 


TABLE  OF  CASES 


Page 
50 

285 

62 

52 

246 

310 

254 

176 

52 

264 

28 

181 

30 

279 

290 

225. 

293, 

299 


Adams  v.  Bucklin 

Agassiz    V.    London    Tramway 

Co. 
Alabama,  Darrington  v. 
Allen  V.  Danlelson 

Hoare  v.  241, 

Allin.  Case  of  Zacharlah 
Ambrose  v.  Clendon 
American  Ins.  Co.  v.  Canter 
Amory  v.  Francis 
Anderson,  Ry.  Co.  v. 

Terry  v. 
Angus,  Dalton  v. 
Armstrong  v.  United  States 
Arnold,  State  v. 
Ashland  v.  Marlborough 
Aveson  v.  Kinnaird  210,  212, 

242,   246,   263,   274,   278, 

B 

Baccio  V.  People  228 

Bacon  v.  Charlton  299 

V.  Texas  148 

Bailey,  Bateman  v.     252,  253,  254, 

255,  250 

United  States  v.  117 

Banlc  of  Kentucljy,  Briscoe  v.  62 

Banlcer's  Case  194 

Barber  v.  Merriam  299 

Barker,  Omichund  v.           319,  320 

Bartlett  v.  Deiprat  242 

Bateman  v.  Bailey     252,  253,  254, 

255,  256 

Bates's  Case  194 

Bates  V.  Clark  112 

Bayard,  Den  d.  v.  Singleton  14 

Beaver  v.  Taylor  279 

Bedlngfleld,  R.  v.        207,  208,  211, 

215,  216,  218,  219,  220,  230,  232, 
265,  279,  288,  289 
Belt  V.  Lawes                           26,  327 

Benton  v.  Starr  232 

Berkeley  Peerage  Case  303 

Berry,  Williamson  v.  146 

Bldwell,  De  Lima  v.  30 

Downes  v.  30,  171,  172 

Birmingham,  R.  v.  283 


Bianchard  v.  Child 
Blandy,  Mary,  Trial  of 
Borden,  Luther  v. 
Borie  v.  Trott 
Boston  Loan  Co.,  Roosa  v. 
Boston,  Roberts  v. 
Boutelle,   Farnum  v. 
Bowman  v.  Middleton 
Bradford  v.  Cunard  Co. 
Bradlaugh  v.  Gossett 
Kradshaw  v.   Commonwealth 
Braham,  Coole  v.  251, 

Brasier's  Case 
Brazier,  R.  v. 

Briscoe  v.  Bank  of  Kentucky 
Bronson  v.  Rodes 
Brookhouse,  Ware  v. 
Brooks  V.  Holden 
Brown  v.  Louisville  Ry.  Co. 
Bryant,  Lane  v. 
Bucklin,  Adams  v. 
Bumstead,  Shailer  v. 
Burgess  v.  Seligman 
Burney,  Rofif  v.  91 

Burton,  Kennard  v.  298. 

Buzzell,  Commonwealth  v.   313, 
Byrne,   Adm'rs   of,   v.   Adm'rs 
of  Stewart 


C 


267 

299 

203 

90 

299 

40 

52 

3.  7 

288 

194 

286 

252 

322 

225 

62 

78 

264 

303 

279 

288 

50 

293 

149 

,  93 

300 

321 

19 


California,  Hurtado  v.  7,  40 

Calvin's  Case  194 

Canter,  American  Ins.  Co.  v.     176 
Cap.  &  Count.  Bank  v.  Henty     26, 

30 
Carroll  County  Supervisors  v. 

United   States  145 

Castner  v.  Sliker  286,  288 

Caton,  Commonwealth  v.  17 

Central  Land  Co.  v.  Laidley      148 
Chapin  t'.  Marlborough       298,  299 
Charles  River  Bridge  v.  War- 
ren Bridge  23 
Charlton,  Bacon  v.                        299 
Clierokee  Nation  v.  Hitchcock     94 
Stephens  v.  94 
Cherokee  Trust  Funds  92 
Chicago,  etc.  Ry.   Co.  v.  Cum- 
mings                                             264 


TABLE  OF  CASES 


Page 
Chicago,  etc.  Ry.  Co.  v.  Minne- 
sota -(> 
Cliild,  Blanchard  v.  267 
Cliristie,  Seneca  Nation  v.  92 
Cincinnati,  etc.  R.  R.  v.  Com'rs    20 

112 
3 
26 
223 
211 
254 
170 


Clark,  Bates  v. 

V.  Tousey 

United  States  v. 
Cleary,   Commonwealth  v. 

R.  V. 
Clendon,  Ambrose  v. 
Clinton  v.  Englebreeht 
Clymer,  Norris  v. 
Cohens  v.  Virginia 
Coleman  v.  People 
Coler,  Stanly  County  v. 
Colledge,  Trial  of  Stephen 
Colt  V.  Dutton 

Commissioners,  Cincinnati,  etc 
R.  R.  Co.  V. 

Cotten  V. 

Lindsay  v. 
Commonwealth, 

V.  Buzzell 

V.  Caton 

V.  Cleary 


15,  161 
285 
149 
318 
321 

20 

21 

14 

Bradshaw  v.    280 

313,  321 

17 

223 

V.  Five  Cents  Savings  Bank    20 

V.  Green  34,  49 

V.  Hackett   275,  279,  280,  281, 

288 


iTaynes  v. 

228 

V.  McPike 

212,  274,  278 

V.  Perry 

28 

V.  Reagan 

304 

V.  Roberts 

280 

V.  Sinclair 

299 

V.  Smith 

16 

V.  Trefethen 

298 

V.  Van  Horn 

279 

Conklln  v.  Consol.  Ry.  Co.  268 

Connell,  Thomas  v.  255,  256 

Consol.  Ry.  Co..  Conklin  v.  268 

Constitutional  Convention,  In 

re  42,  205 

Cook,  United  States  v.  109 

Coolc  V.  Braham  251,  252 

Cooley  V.  Port  Wardens  37 

Coolidge,  U.  S.  V.  315 

Cooper  V.  Telfair  18 

Trenton,  etc.  Co.  v  288 

Webster  v.  146 

Corfleld  v.  Coryell  38 

Coryell,  Corfleld  v.  38 

Cotten  V.  Com'rs  21 

County   Council   of   Kent,    Ex 

parte  55 

Cox,  O'Connell  v.  207 

Craig  V.   Missouri  62.  09,  88 

Cramer,  Smith  v.  250,  250 

Crandall  v.  Nevada  38 


Page 
Croomes  v.  State  :.'79 

Crow  Dog.  Ew  parte  112 

Cunimings,    Chic,    etc.    R.    B. 

Co.   V.  264 

Cunard  Co.,  Bradford  v.  288 

D 

Dalton  V.  Angus  181 

Dammaree,  Trial  of  Daniel        240 
Danielson,  Allen  v.  52 

Danzell  v.  Webquish  92,  108 

Darby  v.  Rice  292 

Darrington  v.  Alabama  62 

Dartmouth  College  v.  Wood- 
ward 23 
Davidson,  State  v.  289,  292 
Dean  v.  Ross  328 
Debolt,  Ohio  Company  v.  144,  149 
Delaware  Canal  Co.,  Rundle  v.  123 
Do  Lima  v.  Bidwell  30 
De  Longchamps,  Respublica  v.    51, 

55 
Delprat,   Bartlett  v.  242 

Den  d.  Bayard  v.  Singleton         14 
Denver,     etc.     R.     R.     Co.     v. 

Spencer  264 

De  Walt  V.  Houston,  etc.   Ry. 

Co.  264 

rte.\ter  &  Wife  v.  Lawrance  317 
Doe  d.  Patteshall  v.  Turford  282 
1)00  d.  Tatham,  Wright  v.  238,  286, 
288,  293 
Dooley  V.  United  States  30 

Dorr  V.  United  States  171 

Dorrance,  Vanliorne's  Lessee  v.    14 
Downes  V.  Bidwell  30.  171.  172 

Dubuque,  Gelpcke  v.    141,  144,  149. 
150,  152 
Duncan.  Johnson  v.  21 

Dupuy  V.  Wickwlre  6 

Dutton,  Colt  V.  321 

E 

Eakln  v.  Raub        2,  16,  23,  28,  38  \ 

Earlo  V.  Earle  264 
Edlngton  v.  Mutual  Life  Ins. 

Co.  298 

Edwards,  R.  v.  290 

Elghmy  v.   People  .301 

Elk  1).  Wilkins  122,  163 

Elmondorf  v.  Taylor  146 

Elw(>od  V.  Satoriio  204 

Eniorson  v.   Lowell   fins  Cn.  299 

Englobreoht.  Clinton  r.  176 

Enos  V.  Tuttle  253 
IJx   parte    County    Council    of 

Kent  55 

Crow  Dog  112 

M'Collum  20 

Eyre,  R.  v.  232 


TABLE  OP^  CASES 


Xi 


F 

Page 
Fairlie  v.  Hastings  242 

Farmers',  &c.  Trust  Co.,  Rea- 
gan V.  36 
Farnum  v.  Boutelle  52 
Farrier  v.  New  England  Mortg. 

Sec.  Co.  151 

Fay  V.  Harlan  299 

Fennerstein's  Champagne  263 

Fenno,  Voazie  Bank  v.  67,  84,  85 
Fisher,  United  States  v.  81,  83 
Five  Cents  Savings  Banli,  Com- 
monwealth r.  20 
Fletcher  v.  Peck  28 
Foster,  R.  v.  210,217,225,278,284 
Stocker  v.  303 
Wiggins  V.  264 
Fowler,  St.  Louis  Ry.  Co.  v.  151 
Francis,  Amory  v.  52 
Freccia,  Sturla  v.  272,  275 
Freelove,  Smith  v.  317 
Freeman  v.  State  264 
Froude  v.  Froude  189 
Fulcher  v.  State                            264 


G 


Gardner  v.  Newburgh  7 

Peerage  Case  299 

Garza,  Neilson  v.  37 

Gelpcke  v.  Dubuque    141,  144,  149, 
150,  152 
Gibbons  v.  Ogden  162 

Goetze  v.  United  States  30 

Gooding,   United   States   v.  268 

Gordon,  Lord  George,  Trial  of   240 
Gossett,  Bradlaugh  v.  i94 

Goudy  V.  Meath  122 

Goulstone,  Woodward  v.  271 

Governor's  Power,  In  re      55,  185 
Grady,  McCurtain  v.  264 

Grand  Trunk  Ry.  v.   Richard- 
son 305,  306 
Granger  Cases  40 
Great  Western  Ry.  Co.,  Rouch  v. 

249,  250,  253,  250 

Green,  Commonwealth  v.         34,  49 

V.  Neal's  Lessee  145 

People  V.  54,  185 

Greenman,  Juilliard  v.    83, 87, 89. 90 

Gresham  Hotel  Co.  v.  Manning   288 

Grey  v.  Young  297 

Grimball  v.  Ross  18 

Griswold,   Hepburn  v.     68.  79,  80. 

82,  83.  86 

Guttridge,  R.  v.  224,  225 

Guy,  Shelby  v.  146 

Gyde,   Ridley   v.        249,    250,    253, 

256 


H 

Page 

Hackett,    Commonwealth    v.      275, 

279,  280,  281,  288 

Haigh,  Rawson  v.     249,  250,   253, 

256 
Hamilton  v.  State  221 

Hanger,  R.  v.  123 

Hansard,  Stockdale  v.  194 

Happersett,  Minor  v.  123 

Hardin,  Leisy  v.  36 

Hardy,  R.  v.  240 

Harlan,  Fay  v.  299 

Ilarlem  Railroad.  Muhlker  v.  152 
Ilarriman  &  Wife  v.  Stowe  212 
Harris  v.  .Tex  151 

Hart,  Wurtz,  Austin  &  Mc- 
Veigh V.  52 
Harty  v.  Malloy  232 
Haskett  v.  Maxey  151 
Hastings,  Fairlie  v.  242 
Hathaway,  Trial  of  Richard  353 
Hawaii  v.  Mankichi  171 
Hawkins.  Kamper  v.  14,  17 
Hawthorne.  Nodle  v.  264 
Hayes  v.  Pitts-Kimball  Co.  303 
Haynes  v.  Commonwealth  228 
Head  v.  Head  47 
Heff,  Matter  of  122,  127 
Henty,  Cap.  &  Count.  Bank  v.  26, 30 
Hepburn  v.  Griswold  68,  79,  80. 
82.  83,  86 
Hillmon.     Mutual     Life     Ins. 

Co.,  V.  291,  298,  299,  301 

Hitchcock,  Cherokee  Nation  v.    94 
Lone  Wolf  v.  120 

Hoare  v.  Allen  241,  246 

Holden,  Brooks  v.  303 

Holliday.  United  States  v.  115 
Holmes  v.  Walton  6 

Holt,  Throckmorton  v.  271 

Home.   Lyon  v.  328 

Houston,     etc.     Ry.     Co.,     De 

Walt  V.  264 

Hudspeth,  State  v.  279 

Hunscom  v.  Hunscom  320 

Hunter  v.  People  301 

V.  State  290 

Hurtado  v.  California  7,  40 

Hutchinson.  Turner  v.  267 

IIuus  V.  New  York,  etc.  Steam- 
ship Co.  30 
Hylton,  Ware  v.  18 


Illinois,  Munn  v.  40 

In  re  Constitutional  Convention  42, 

205 
Northampton  21 


Xll 


TABLE  OF  CASES 


Page 
In  re  Power  of  the  Governor  55, 185 
Rahrer  36 

Rapier  161 

Ross  173 

Senate's  Application     54.   185 
Senate  Bill  34,  43 

Insurance  Co.  v.  Mosley    212,  248, 
250,  253,  265,  274,  275,  276,  279, 
288,  291,  293,  296,  298,  300 
Interstate   Ry.    Co.   v.    Massa- 
chusetts 21 
Irby  V.  State                                  264 
Iron  Co.,  Jones  v.                         151 


Jenkins,  Thomas  v. 
Jex,  Harris  v. 
Johnson  v.  Duncan 

Mississippi  v. 
Jones  V.  Iron  Co. 

V.   Meehan 


290 
151 
21 
16 
151 
108 


Judges  of  Court  of  Registra- 
tion, Tyler  v.  10 
Judges,  Report  of  the  54,  55 
Jullllard  V.  Greenman  83.  87,  89,  90 
Justices,  Opinion  of  31,  34,  43,  46, 
49,  50,  51,  55,  56,  57,  58,  83,  205 


K 


Kagama,  United  States  v. 

118,  171 

Kamper  v.  Hawkins 

14,  17 

Keene,  Perry  v. 

20,  28 

Kemp,  Robson  v. 

241,  246 

Kempland  v.  Macauley 

252 

Kendall  v.  Kingston 

9 

Kennard  v.  Burton 

298,  300 

Kennedy,  Matter  of 

271 

Kingston,  Kendall  r. 

9 

Klnnaird.  Aveson  v.    210, 

212,  225, 

242,  246,  263,  274,  278, 

293,  299 

Kinney,  State  v. 

232 

Knight  V.  Knight 

264 

Knowles,  Pet'r 

52 

Krelllnger,  Parkhurst  v. 

264 

Laldley,  Central  Land  Co.  v.  148 

Lake  Shore  Ry.  Co.  v.  Prentice  145 

Lane  v.  Bryant  288 

V.  Vick  145 

Langston.  Robeley  v.  321 

Lawes,  Belt  v.                       26,  327 

Lawrance,  Dexter  &  Wife  v.  317 

Lechmere  v.  Wlnthrop  3 

Lees  V.  Marton  255 

Lefflngwell,  Warren  v.  146 


Page 
Legal  Tender  Cases  31,  40,  07,  72, 
79,  83.  84,  85.  86 
Leisy  v.  Hardin  36 

Lepers,  Segregation  of  44 

Lester,  Texas,  etc.  Ry.  Co.  v.  268 
Lindsay  v.  Com'rs  14 

Little  V.  Rogers  316 

Livingston  v.  Van  Ingen  21,  38 
London,  etc.  Ry.  Co.,  Pickering 

Phipps  V.  28 

London  &  North  Western  Ry. 

Co.,  Overseers  v.  55 

London     Tramway     Co.,     Ag- 

assiz  V.  285 

Lone  Wolf  v.  Hitchcock  120 

Louisville  Ry.  Co.,  Brown  v.  279 
Lowell  Gas  Co.,  Emerson  v.  299 
Lund  V.  Tyngsborough  279,  286, 
288,  289,  290 
Lunny,  R.  v.  212,  217 

Luther  v.  Borden  203 

Lyon  V.  Home  328 

M 

Macauley,  Kempland  t'.  252 

MacNaghten's  Case  34,  48,  184 
Madison,  Marbury  v.  2,  14 

Malloy.   Ilarty  v.  232 

Mankichi,  Hawaii  v.  171 

Manning,  Gresham  Hotel  Co.,  v.  288 
Marbury  v.  Madison  2,  14 

Marlborough.  Ashland  v.  299 

Chapin  t'.  298,  299 

Marton,  Lees  v.  255 

Maryland,  McCulloch  v.  15,  31 
Massachusetts,   Interstate  Ry. 

Co.  V.  21 

Mass.    Mutual    Life    Ins.    Co., 

Swift  V.  292,  293 

Matter  of  Heflf  122,   127 

Kennedy  271 

Maxey,  Haskett  v.  151 

Mayes,  Talton  v.  118,  171 

McClure,  Railroad  Company  v.  148 
M'CoIlum,  Ex  parte  20 

McCulloch  V.  Maryland  15.  31 

McCullough  V.  Virginia  148 

McCurtaln  v.  Grady  264 

McNlcholas  v.  N.  E.  Tel.  &  Tel. 

Co.  268 

McPike,  Commonwealth  v.  212, 
274,  278 
Meath.  Goudy  v.  122 

Meehan,  Jones  v.  108 

Megson,  R.  v.     218,  225,  226,  235, 

247 
Merriam,  Barber  v.  299 

Middleton,  Bowman  v.  3,  7 

Miller  t'.  Race  76 


TABLE  OF  CASES 


xiu 


Page 
Minnesota,    Chicago,    etc.    Ky. 

Co.  V.  26 

Minor  c.  Happersett  123 

Mississippi  v.  Joliuson  16 

Missouri.  Craig  v.  62,  69,  88 

Mitchell  V.  Territory  264 

Morgan,  U.  v.  210,  211 

Mosley,  Insurance  Co.,  v.   212,  248, 

250,  253,  265,  274,  275,  276,  279, 
288,  291,  293,  296,  298,  300 
Muhlker  v.  Harlem  Railroad  152 
Munn  V.  Illinois  40 

Murphy,  State  v.  207,  279 

Mutual    Life    Ins.    Co.,    Eding- 

ton  V.  298 

V.  Hlllmon     291,  298,  299,  301 


N 


Nash.  Rollofson  v.  264 

Neal's  Lessee,  Green  v.  145 

Neilson  v.  Garza  37 

Nelson  v.  United  States  187 

Nesmith  v.  Sheldon  146 

Nevada,  Crandall  v.  38 

Newburgh,   Gardner  v.  7 

Newell.  State  v.  92 

New  England  Mortg.  Sec.  Co.. 

Farrier  v.  151 

New  England  Tel.  &  Tel.  Co.. 

McNicholas  v.  268 

Newman  v.  Stretch  255 

New  York  Central    R.   R.   Co., 

Reed  v.  298 

New  York  Central  R.  R..  Wal- 

dele  r.  207.  286 

New  York,  etc.  Steamship  Co., 

Huus  r.  30 

Nicholas,  R.  v.  225 

Nlckerson,  Vail  v.  321 

Nodle  V.  Hawthorne  264 

Norris  r.  Clymer  2 

Northampton,  In  re  21 

North  Brookfleld  v.  Warren      290 


O 


O'Brien,  Vlcksburg  Railroad  v.    268 

O'Connell  v.  Cox  207 

V.  The  Queen  47 

Ogden,  Gibbons  v.  162 

V.  Saunders  19,  83 

Ohio  Company  v.  Debolt     144,  149 

Omichund  v.  Barker  319,  320 

Opinion  of  Justices     31,  34,  43,  46, 

49,  50,  51,  55,  56.  57.  58.  83,  205 

Osborne,  R.  v.     215,  218,  228,  230. 

231,  232 

Overseers  v.  L.  &  N.  W.   Ry. 

Co.  55 


Parkhurst  v.  Krellinger 
Parlement  Beige,  The 
Patteshall,  Doe  d.  v.  Turford 
Paxton's  Case 
I'eck,  Fletcher  v. 
Pennsylvania  v.  Wheeling,  etc 

Bridge  Co. 
People,  Baccio  v. 

Coleman  v. 

Eighmy  v. 

V.  Green 

Hunter  v. 

V.  Rosenberg 

■V.  Smith 

V.  Sullivan 

V.  Supervisors  of  Orange 


Page 

264 

197 

282 

7 

28 

36 

228 

285 

301 

54,  185 

301 

21 

27 

226 

20, 

84 

V.  Williams  290,  300 

Perry.  Commonwealth  v.  28 

V.  Keene  20.  28 

I'hil.,  etc.  R.  Co..  Rowland  r.     .-503 

Phillips  V.  Savage 

Pickering    Phlpps 

etc.  Ry.  Co. 
Pierson  v.  State 
Pitts-Klmball   Co., 
Place.  Taylor  v. 
Polk,  Whlttington  v. 
Pope.  St.  Leiger  v. 
Port  Wardens,  Cooley  v. 
Powell's  Case 
Power  of  the  Governor.  In  re 

Prentice,  Lake  Shore  Ry.  Co.  v. 


V.    London, 

28 

264 

Hayes  v.      303 

34,  52 

14 

76 

37 

322 

55, 

185 

145 


Q 

Queen's  Case.  The  34.  47,  184 

Queen,  The,  O'Connell  v.  207 


R 


Race.  Miller  v.  76 

Rahrer,  In  re  36 

Railroad  Company  v.  McClure  148 
Railway  Co.  v.  Anderson  264 

Rapier.  In  re  161 

Rassmussen  v.  United  States  171 
Raub.  Eakln  v.  2,  16,  23,  28,  38 
Rawson  v.  Haigh  249,  250,  253,  256 
Reagan,  Commonwealth  v.  304 

1'.  Farmers',  etc.  Trust  Co.  36 
Reed    t'.    New    York    Central 

R.  R.  Co.  298 

Renfrewshire,  Trial  of  Witches 

of  341,  347 

Report  of  the  .Judges  54 

Respubllca  v.  De  Longchamps  51, 55 


XIV 


TABLE  OF  CASES 


Page 

K.  V.  Bedingfleld   207,  208,  211,  215, 

216,  218,  219,  220,  230,  232, 

265,  279,  288,  280 

V.  Birmingham  283 

V.  Brazier  '  225 

V.  Cleary  211 

V.   Edwards  290 

V.  Eyre  232 

V.  Foster      210,  217,  225,  278, 

284 

V.  Guttridge  224,  225 

V.  Hanger  123 

V.  Hardy  240 

V.  Liinny  212,  217 

V.  Megson    218,  225,  226,  235, 

23G,  247 

V.  Morgan  210,  211 

V.  Nicholas  225 

V.  Osborne  215,  218,  228,  230, 

231,  232 

V.  Ridsdale  227,  228,  229 

V.  Riehl  198 

V.  Stroner  223 

V.  Wainwright  301 

r.  Walljer  232 

V.  Winlc       227,  228,  229,  231 

V.  Wood  233 

Rice,  Darby  v.  292 

Richardson,  Grand  Trunk  Ry.r.  305, 

306 
Richmond   R.   Co.    v.   Tobacco 

Co.  305,  306 

Riclsert,  United  States  v.  121 

Ridley   v.   Gyde        249,   250,   253, 

256 

Ridsdale,  R.  v.  227,  228.  229 

Riehl,  R.  V.  198 

Riggs  t'.   State  26 

Robeley  v.  Langston  321 

Roberts  v.  Boston  40 

Commonwealth  v.  286 

Robinson,  State  v.  279 

Robson  r.  Kemp  241,  246 

Rodes.  Bronson  v.  78 

Roff  V.  Burney  91.  93 

Rogers.  Little  v.  316 

United  States  v.     109,  117,  164 

Rollofson  r.  Nash  264 

Roosa  V.  Boston  Loan  Co.  299 

Rosenberg,  People  v.  21 

Ross.  Dean  v.  328 

Grimball  v.  18 

In  re  173 

Ronch    V.    Great   Western    Ry. 

Co.  249,  250,  253.  2.56 

Rowan  r.  Runnels  146,  149 

Rowland  r  Phil.,  etc.  R.  Co.  .303 
Hnndle  r.  Delaware  Cannl  Co.  123 
Runnels.  Rowan  v.  146.  149 

Riiskin,  Whistler  v.  326,  332 


Page 

47 

5 


Russell   (Earl).  Trial  of 
Rutgers  v.  Waddington 

S 


Sackville's  Case  46,  183 

St.  Leiger  v.  Pope  76 

St.  Leonards,  Sugden  v.  271,  300, 

.303 
St.  Louis  Ry.  Co.  v.  Fowler        151 

Salem,  Trial  of  Witches  of       330 

Sandford,  Scott  v.  92 

Saterlie.  Elwood  v.  264 

Saunders,  Ogden  v.  19,  83 

Savage,  Phillips  v.  3 

Scott  V.  Sandford  92 

Segregation  of  Lepers  44 

Seligman,   Burgress  v.  149 

Senate's  Application,  In  re   54,  185 

Senate  Bill,  In  re  34,  43 

Seneca  Nation  v.  Christie  92 

Shailer  v.  Bumstead  293 

Sharpe  v.  Wakefield  28 

Shelby  v.  Guy  146 

Sheldon,  Nesmlth  v.  146 

Ship-money,  Case  of  194 

Sinclair,  Commonwealth  v.         299 

Singleton.  Den  d.  Bayard  v.         14 
Sinking  Fund  Cases       20,  84,  204 

Sliker,  Castner  v.  286,  288 

Smith,   Commonwealth  v.  16 

V.  Cramer  250,  256 

V.  Freelove  317 

People  V.  27 

V.  State  264 

Spencer.    Denver,    etc.  R.    R. 

Co.  V.  264 

State  V.  232 

Stagner  v.  State  264 

Stanly  County  v.  Coler  149 

Starr,  Benton  v.  232 

State  V.  Arnold  279 

Croomes  v.  279 

V.  Davidson  289,  292 

Freeman  v.  264 

Fulcher  v.  264 

Hamilton  v.  221 

V.  Hudspeth  279 

Hunter  v.  290 

Irby  V.  264 

V.  Kinney  232 

V.  Murphy  207,  279 

1'.  Newell  92 

Pierson  v.  264 

Rlggs  V.  26 

i;.  Robinson  270 

Smith  V.  264 

V.  Spencer  232 

Stagner  v.  264 

Warren  v.  264 


TABLE  OF  CASES 


XV 


Page 
State,  Washington  v.  2G4 

Stephens  v.  Cherokee  Nation       94 
Stewart,  Adm'rs  of,  Adm'rs  of 

Byrne  v.  19 

;;.  Supervisors  152 

Stockdale  v.  Hansard  194 

Stoekor  v.  Foster  303 

Stowe,  llarriman  &  Wife  v.        212 
Stretch,  Newman  v.  255 

Stroner,  R.  v.  223 

Sturla  V.  Freceia  272,  275 

Suffolk.  Case  of  the  Watches  of  330 
Sugden  v.  St.  Leonards    271,  300, 

303 
Sullivan,  People  v.  226 

Supervisors    of    Orange,  Peo- 
ple V.  20,  84 
Supervisors.   Stewart  v.  152 
Swift    V.    Mass.    Mutual    Life 
Ins.  Co.                                292,  293 
V.  Tyson  145 
Symsbury  Case  6 
Svndics    of    Brooks    v.    Wey- 
'  man                                                20 


Talton  V.  Mayes  118,  171 

Tarpley,  Watson  v.  145 

Tatham,  Doe  d.,  Wright  v.       238, 
286,  288,  293 
Taylor,  Beaver  v.  279 

Elmendorf  v.  146 

V.  Place  34,  52 

Telfair,  Cooper  v.  18 

Territory,  Mitchell  v.  264 

Terry  v.  Anderson  28 

Texas,  Bacon  v.  148 

Texas,  etc.  Ry.  Co.  v.  Lester      268 
Thomas  v.  Connell  255,  256 

V.  Jenkins  290 

Thompson    &    Wife    v.    Treva- 

nion       210,   217,  225,   237.  273, 

274,   278 

Thorpe,  Case  of  Thomas  183 

Watts  V.  252 

Throckmorton  v.  Holt  271 

Thurston  v.  Whitney  320 

Tobacco     Co.,     Richmond     R. 

Co.  V.  305,  306 

Tonnage  Tax  Case  38 

Tooke,  John  Home,  Trial  of      240 
Tousey,  Clark  r.  3 

Trefethen,  Commonwealth  v.     298 
Trenton,  etc.  Co.  v.  Cooper  288 

Trevanlon.  Thompson  &  Wife  v.  210. 
217,  225,  237,  273.  274.  278 
Trevett  t'.  Weeden      5,  52,  54,  184 
Trott,  Borie  v.  90 

Turford,  Doe  d.  Patteshall  v.     282 


Page 
Turner  v.  Hutchinson  267 

V.  Wilkes  County  Commis- 
sioners 148 
Tattle,  Enos  v.                               253 
Tyler    v.    Judges   of   Court   of 

Registration  10 

Tyngsborough,  Lund  v.      279,  286, 

288,  289,  290 

Tyson,  Swift  v.  145 


U 


United  States,  Armstrong  v.  30 
V.  Bailey  117 
Carroll  County  Supervis- 
ors V.  145 
V.  Clark  26 
V.  Cook  109 
V.  Coolidge  315 
Dooley  v.  30 
Dorr  V.  171 
V.  Fisher  81,  83 
Goetze  v.  30 
•  V.  Gooding  268 
V.  Holliday  115 
V.  Kagama  118,  171 
Nelson  v.  187 
Rassmussen  v.  171 
V.  Rickert  121 
V.  Rogei-s  109,  117,  164 


Vail  V.  Nickerson  321 

V'an  Horn,  Commonwealth  v.  279 
Vanhorne's  Lessee  v.  Dorrance  14 
Van  Ingen,  Livingston  v.  21,  38 
Veazie  Bank  v.  Fenno  67,  84,  85 
Vermont  &  Can.   R.   R.   Co.   v. 

Vt.  Cent.  R.  R.  Co.  151 

Vermont  Cent.   R.   R.   Co.,  Vt. 

&  Can.  R.  R.  Co.  v.  151 

Viek,  Lane  v.  145 

Vicksburg  Railroad  v.  O'Brien    268 

Virginia.  Cohens  v.  15,  161 

McCullough  V.  148 

W 

Waddlngton,  Rutgers  v.  5 

Wainwright,  R.  v.  301 

Wakefield,  Sharpe  v.  28 

Waldele  v.  New  York  Central 

R.  R.  207,  286 

Walker  R.  v.  232 

Walton,  Holmes  v.  6 

Ware  v.  Brookhouse  264 

V.   Hylton  IS 

Warren  Bridge,  Charles  River 
Bridge  v.  23 


XVI 


TABLE  OF  CASES 


Page 
Warren,  LeflSngwell  v.  146 

North  Brookfield  v.  290 

V.  State  264 

Washington   c.   State  264 

Waterman  t'.  Whitney  293 

Watson  'V.  Tarpley  145 

Watts  V.   Thorpe  252 

Webquish,  Danzell  v.  92,  108 

Webster  v.  Cooper  146 

Weeden,  Trevett  v.     5,  52,  54,  184 
Wellington  et  al..  Petitioners     20, 
24,  84 
Weyman,  Syndics  of  Brooks  v.       20 
Wheeling,  &c.  Bridge  Co.,  Penn- 
sylvania V.  36 
Whistler  v.  Ruskin                326,  332 
Whitney,  Thurston  v.                   320 
Waterman  v.                           293 
Whittington  v.  Polk  14 
Wickwire,  Dupuy  v.  6 
Wier's  Case                             188,  190 
Wiggins  V.  Foster                         264 


Page 
Wilkes  County  Commissioners, 

Turner  v.  148 

Wilkins,  Elk  v.  122,  163 

Williams,  People  v.  290,  300 

Williamson  v.  Berry  146 

Wink,  R.  V.  227,  228,  229,  231 

Winthrop,   Lechmere  v.  3 

Witches  of  Renfrewshire,  Trial 

of  341,  347 

Witches  of  Salem.  Trial  of  330 
Witches  of  Suffolk,  Trial  of  330 
Witt  V.  Witt  272 

Wood,   R.   V.  233 

Woodward,  Dartmouth  College  r.  23 
V.  Goul  stone  271 

Wright  V.  Doe  d.  Tatham  238.  286, 
288,  293 
Wurtz,   Austin   &  McVeigh  v. 

Hart  62 


Young,  Grey  v. 


297 


LEGAL   ESSAYS 


THE  OEIGIN  Aiq^D  SCOPE  OF  THE  AMERI- 
CAN DOCTRINE  OF  CONSTITUTIONAL 
LAW 

[In  1893  Professor  Thayer  accepted  an  invitation  to  address  the 
Congress  on  Jurisprudence  and  Law  Reform  which  was  to  meet  at 
the  World's  Fair  in  Chicago,  and  he  read  this  paper  before  the  Con- 
gress on  August  9th.  It  was  afterwards  published  in  pamphlet 
form  by  Little,  Brown,  &  Company,  and  was  reprinted  in  the  Har- 
vard Law  Review  { 7  Harv.  Law  Rev.  129 ) . 

The  scope  of  the  judicial  power  in  passing  on  the  constitution- 
ality of  legislation  —  a  question  which  Professor  Thayer  deemed  of 
peculiar  importance  —  he  discussed  further  in  1901  in  chapters  111, 
IV,  and  V  of  his  Biographical  Sketch  of  Chief  Justice  Marshall 
(John  Marshall,  Riverside  Biographical  Series,  Houghton,  Mifflin, 
&  Company,  1901).] 

I.  How  did  our  American  doctrine,  which  allows  to  the 
judiciary  the  power  to  declare  legislative  Acts  unconstitu- 
tional, and  to  treat  them  as  null,  come  about,  and  what  is 
the  true  scope  of  it? 

It  is  a  singular  fact  that  the  State  constitutions  did  not 
giv(^  this  power  to  the  judges  in  express  terms:  it  was 
inferontial.  In  the  earliest  of  these  instruments  no  lan- 
guage was  used  from  which  it  was  clearh^  to  be  made  out. 
Only  after  the  date  of  the  Federal  constitution  was  any  such 
language  to  be  found;  as  in  Article  XII  of  the  Kentucky 
constitution  of  1792.  The  existence  of  the  power  was  at 
first  denied  or  doubted  "m  some  quarters ;  and  so  Tate  as 
fhe^year  1825,  in  a  strong  dissenting  opinion,  Mr.  Justice 
Gibson,  of  Pennsylvania,  one  of  the  ablest  of  American 

1 


2  LEGAL   ESSAYS 

judges,  and  afterwards  the  chief  justice  of  that  State, 
wholly  denied  it  under  any  constitution  which  did  not 
expressly  give  it.^  He  denied  it,  therefore,  under  the  State 
constitutions  generally,  while  admitting  that  in  that  of  the 
United  States  the  power  was  given ;  namely,  in  the  second 
clause  of  Article  VI.,  when,_Broyiding  that  the  constitution, 
and  the  laws  and  treaties  made  in  pursuance  thereof,  "^hall 
be  the  supreme  law  of  thejand;  andthe  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  constitution 
or  laws  of  any  Slate  to  th(»  contrary  notwithstanding."  ^ 

So  far  as  the  grounds  for  this  remarkable  power  are  found 
in  the  mere  fact  of  a  constitution  being  in  writing,  or  in 
judges  being  sworn  to  support  it,  they  are  quite  inadequate. 
Neither  the  written  form  nor  the  oath  of  the  judges  neces- 
sarily involves  the  right  of  reversing,  displacing,  or  dis- 
regarding any  action  of  the  legislature  or  the  executive 
which  these  departments  are  constitutionally  authorized  to 
take,  or  the  determination  of  those  departments  that  they 
are  so  authorized.  It  is  enough,  in  confirmation  of  this, 
to  refer  to  the  fact  that  other  countries,  as  France,  Ger- 
many, and  Switzerland,  have  written  constitutions,  and 
that  such  a  power  is  not  recognized  there."-  "  'I'hc  restric- 
tions," says  Dicey,  in  his  admirable  Law  of  the  Constitu- 
tion, "  placed  on  the  action  of  the  legislature  under  the 
French  constitution  are  not  in  reality  laws,  since  they  are 
not  rules  which  in  the  last  resort  will  be  enforced  by  the 
courts.  Their  true  character  is  that  of  maxims  of  political 
morality,  which  derive  whatever  strengtii  tliey  possess  from 

1  Eakin  v.  Raub,  12  S.  &  R.  330. 

*  This  opinion  has  fallen  strangely  out  of  sight.  It  lias  much  the 
ablest  discussion  of  the  question  which  I  have  ever  seen,  not  excepting 
the  judgment  of  Marshall  in  Marbury  v.  Madison,  which,  as  I  venture  to 
think,  has  been  overpraised.  Gibson  afterwards  accepted  the  generally 
received  doctrine.  "  nsave" changed  that  opinion,"  said  the  Chief  Justice 
to  counsel,  in  Norrls  v.  Clymer,  2  Pa.  St.,  p.  281  (184.'5),  "for  two 
reasons.  The  late  convention  (apparently  the  one  preceding  the  Penn- 
sylvania constitution  of  1838)  by  their  silence  sanctioned  the  pretensions 
of  the  courts  to  deal  freely  with  the  Acts  of  the  legislature ;  and  from 
experience  of  the  necessity  of  the  case." 

*  [See  "The  Legislatures  and  the  Courts,"  by  Charles  B.  Elliott, 
5  Pol.  Sc.  Quarterly,  225.] 


CONSTITUTIONAL  LAW  3 

being  formally  inscribed  in  the  constitution,  and  from  the 
resulting  support  of  public  opinion,"  ^ 

How  came  we  then  to  adopt  this  remarkable  practice? 
Mainly  as  a  natural  result  of  our  political  experience  before 
the  War  of  Independence,  —  as  being  colonists,  governed 
under  written  charters  of  government  proceeding  from  the 
English  Crown.  The  terms  and  limitations  of  these  char- 
ters,  so  many  written  constitutions,  were  enforced  by 
various  means,  —  by  forfeiture  of  the  charters,  by  Act  of 
Parliament,  by-JJie  direct  ammlling^of  legislation  by  the 
Qrown,  by  judicial  proceedings  and  an  ultimate  appeal  to 
the  Privy  Council.  Our  practice  was  a_natural  result  of 
this;  but  it  was  by  no  means  a  necessary  one.  All  this 
colonial  restraint  was  only  the  usual  and  normal  exercise, 
of  J30wer.  An  external  authority  had  imposed  the  terms 
of  the  charters,  the  authority  of  a  paramount  government, 
fully  organized  and  equipped  for  every  exigency  of  diso- 
bedience, with  a  king  and  legislature  and  courts  of  its  own. 
The  superior  right, jjid,^uthority  of  JMs  gQ-YejamgPf  were 
fundamental  here^^  and  fully  recognized;  and  it  was  only 
a  usual,  orderly,  necessary  procedure  when  our  own  courts 
enforced  the  same  rights  that  were  enforced  here  by  the 
appellate  court  in  England.  These  charters  were  in  the 
strict  sense  written  law:  asJlieuLJcestraints  upon  the  colo- 
jlial-legislartures^were^nforced  by  the  English  court  of  last 
resort,  so  might  they  be  enforced  through  the  colonial 
courts,  by  disregarding  as  null  what  went  counter  to  them.^ 

1  Ch.  ii.  p.  127,  3d  ed.  President  Rogers,  in  the  preface  to  a  valu- 
able collection  of  papers  on  the  "  Constitutional  History  of  the  United 
States,  as  seen  in  the  Development  of  American  Law,"  p.  11,  remarks 
that  "  there  is  not  in  Europe  to  this  day  a  court  with  authority  to  pass 
on  the  constitutionality  of  national  laws.  But  in  Germany  and  Switzer- 
land, while  the  Federal  courts  cannot  annul  a  Federal  law,  they  may,  in 
either  country,  declare  a  cantonal  or  State  law  invalid  when  it  conflicts 
with  the  Federal  law."  Compare  Dicey,  uhi  supra,  and  Bryce,  Am.  Com., 
1.  430.  note  (1st  ed.),  as  to  possible  qualifications  of  this  statement. 

-  For  the  famous  cases  of  Lechmere  v.  Wlnthrop  (1727-28),  Phillips 
V.  Savage  (1734),  and  Clark  v.  Tousey  (1745),  see  the  Talcott  Papers. 
Conn.  Hist.  Soc.  Coll.,  iv.  94,  note.  For  the  reference  to  this  volume  I 
am  indebted  to  the  Hon.  Mellen  Chamberlain,  of  Boston.  The  decree  of 
the  Privy  Council,  in  Lechmere  v.  Wlnthrop,  declaring  "  null  and  void  " 
a  provincial  Act  of  nearly  thirty  years'  standing,  is  found  in  Mass.  Hist. 
Soc.  Coll..  sixth  series,  v.  496.  [See  also  Bowman  v.  Middleton,  1  Bay, 
252  (1792).] 


4  LEGAL  ESSAYS 

The  Eevolution  came,  and  what  happened  then  ?  Simply 
this:  we  cut  the  cord  that  tied  us  to  Great  Britain,  and 
there  was  no  longer  an  external  sovereign.  Our  conception 
now  was  that  "|he  people"  took  his  place;  that  is  to  say, 
OUT  own  home  population  in  the  several  States  were  naw 
Jiieir  own  sovereign.  So  far  as  existing  institutions  were 
left  untouched,  they  were  construed  by  translating  the  name 
and  style  of  the  English  sovereign  into  that  of  our  new 
ruler,  —  ourselves,  the  People.  After  this  the  charters,  and 
still  more  obviously  the  new  constitutions,  were  not  so  many 
orders  from  without,  backed  by  an  organized  outside  gov- 
ernment, which  simply  performed  an  ordinary  function  in 
enforcing  them ;  they  were  precepts  from  the  people  them- 
selves who  were  to  be  governed,  addressed  to  each  of  their 
own  number,  and  especially  to  those  who  were  charged  with 
the  duty  of  conducting  the  government.  No  higher  power 
existed  to  support  these  orders  by  compulsion  of  the  ordi- 
nary sort.  The  sovereign  himself,  having  written  these 
expressions  of  his  will,  had  retired  into  the  clouds;  in  any 
regular  course  of  events  he  had  no  organ  to  enforce  his  will, 
except  those  to  whom  his  orders  were  addressed  in  these 
documents.  How  then  should  his  written  constitution  be 
enforced  if  these  agencies  did  not  obey  him,  if  they  failed, 
or  worked  amiss? 

Here  was  really  a  different  problem  from  that  which  had 
been  presented  under  the  old  state  of  things.  And  yet  it 
happened  that  no  new  provisions  were  made  to  meet  it.  The 
old  methods  and  the  old  conceptions  were  followed.  In 
Connecticut,  in  1776,  by  a  mere  legislative  Act,  the  charter 
of  1662  was  declared  to  continue  "  the  civil  Constitution 
of  the  State,  under  the  sole  authority  of  the  People  thereof, 
independent  of  any  King  or  Prince  whatsoever ; "  and  then 
two  or  three  familiar  fundamental  rules  of  liberty  and 
good  government  were  added  as  a  part  of  it.  Under  this 
the  people  of  Connecticut  lived  till  1818.  In  Rhode  Island 
the  charter,  unaltered,  served  their  turn  until  1842 ;  and, 
as  is  woll  known,  it  was  upon  this  that  one  of  the  early  cases 


CONSTITUTIONAL  LAW  5 

of  judicial  action  arose  for  enforcing  constitutional  pro- 
visions under  the  new  order  of  things,  as  against  a  legis- 
lative Act;  namely,  the  case  of  Trevett  v.  Weeden,  in  the 
lihode  Island  Supreme  Court  in  1?86.^ 

But  it  is  instructive  to  see  that  this  new  application  ..of 
judicial  power  was  not  universally  assented  to.  It  was 
deniedTy  several  members  of  the  Federal- eonTention,^  and 
was  referred  to  as  unsettled  by  various  judges  in  the  last 
tffiQ_ decades  of  the  last  century.  The  surprise  of  the  Rhode 
Island  legislature  at  the  action  of  the  court  in  Trevett  v. 
Weeden  seems  to  indicate  an  impression  in  their  minds  that 
the  change  from  colonial  dependence  to  independence  had 
made  the  legislature  the  substitute  for  Parliament,  with  a 
like  omnipotence.^     In  Vermont  it  seems  to  have  been  the 

>  Varnum's  Report  (Providence,  1787)  ;  s.  c.  2  Chandler's  Crim. 
Trials,  2G9. 

"  ["It  was  explicitly  said  [in  the  convention]  that  the  judges  would 
have  the  right  to  disregard  unconstitutional  laws  anyway.  —  an  opinion 
'purTorwaT3~T)y~soiue~orTEe'  weightiest  members.  •  YeFsome  denied  it. 
And  we  observe  that  the  power  was  not  expressly  given.  When  we  find 
such  a  power  expressly  dp"'pd,.ajid  vet  not  expressly  ^i^ven  ;  and  when 
we  observe,  for  example,  that  leading  public  men,  e.  r/.,  scTconspicuous  a 
member  of  the  convention  as  Charles  Pinckney  of  South  Carolina,  after- 
wards a  senator  from  that  State,  wholly  denied  the  power  ten  years 
later  ;(«)  it  being  also  true  that  he  and  others  of  his  way  of  thinking 
urged  the  express  restraints  on  state  legislation.  —  we  may  justly  reach 
the  conclusion  that  this  question,  while  not  overlooked,  was  intention- 
anyJeft.Jiatoiicbed.  Like  the  question  of  the  bank  and  various  others, 
presumably  it  was  so  left  in  order  not  to  stir  up  enemies  to  the  new  in- 
strument;  left  to.  be  Kf<^<^ipH  hy  tho  aiipnt  fiPtPi-minations  of  time,  or  by 
later  discussion."     Thayer's  Marshall,  65,  66.] 

'  [For  the  resolutions  of  the  Rhode  Island  legislature  summoning  the 
judges  of  the  Supreme  Court  to  attend  and  "  assign  the  reasons  and 
grounds  of  the  aforesaid  judgment,"  see  2  Arnold's  History  of  Rhode 
Island.  526.]  And  so  of  the  excitement  aroused  by  the  alleged  setting 
aside  of  a  legislative  Act  in  New  York  in  1784,  in  the  case  of  Rutgers  v. 
Waddington.  Dawson's  edition  of  this  case,  "  With  an  Historical  Intro- 
duction "  (Morrisania,  1866),  pp.  xxiv  et  seq.  In  an  "Address  to  the 
People  of  the  State,"  issued  by  the  committee  of  a  public  meeting  of  "  the 
violent  Whigs,"  it  was  declared  (p.  xxxiii)  "That  there  should  be  a 
power  vested  in  Courts  of  Judicature,  whereby  they  might  control  the 

(")  "  What  Pinckney  said  in  1790  was  this :  '  Upon  no  subject  am  I 
aiore  convinced  than  that  it  is  an  unsafe  and  dangerous  doctrine  lii  a 
repnhlir  pyfr  to  suppose.. Uiat  a  jiid^i'  ought  to  possess  the  right  of  ques- 
tioning or  deciding  upon  the  constitutionality  of  treaties,  laws,  or  any 

_ict  of  the  legislature.  It  is  placing  the  opinion  of  finjndividuali  or  of 
two  or  three,  above  that  of  both  branches  of  Congress,  a  doctrine  which 

Jia  not  waiuraiited-bylilia-jCoastitHtion,  aad  will  not,  I  hope,  long  have 
many  advocates  in  this  country.'     Wharton,  State  Trials,  412." 


6  LEGAL  ESSAYS 

established  doctrine  of  the  period  that  the  judiciary  could 
not  disregard  a  legislative  Act;  and  the  same  view  was 
held  in  Connecticut,  as  expressed  in  1795  by  Swift,  after- 
wards cliicf  justice  of  that  State.  In  the  preface  to  1  1). 
Chipman's  (Vermont)  Reports,  22  et  seq.,  the  learned 
reporter,  writing  (in  1824)  of  the  period  of  the  Vermont 
constitution  of  1777,  says  that  "  No  idea  was  entertained 
'^  that  the  judiciary  had  any  power  tojnquire  into  the  consti- 
tutionality of  Acts  of  the  legislature,  or  to  pronounce  them 
void  for  any  c^iuse,  or  even  to  question  their  validity."  And 
at  page  25,  speaking  of  the  year  1785,  he  adds:  "Long 
after  the  period  to  which  we  have  alluded,  the  doctrine  that 
the  constitution  is  the  supreme  law  of  the  land,  and  that 
the  judiciary  liavo  authority  to  set  aside  .  .  ,  Acts  repug- 
i^iilliJill^^^o,  was  considered  anti-republican."  In  1814,^ 
for  the  first  time,  I  believe,  we  find  this  court  announcing 
an  Act  of  the  State  legislature  to  be  "  void  as  against  the 
constitution  of  the  State  and  the  United  States,  and  even 
the  laws  of  nature."  It  may  be  remarked  here  that  the 
doctniie  of  declaring  legislatiye  Acts  void  as  being  contrary 
Ja_the.  constitution,  was  probably  helped  into  existence  by 
q,.  theory  which  found  some  favor  among  our  ancestors  at 
the  time  of  the  Eevolution,  that  courts  might  disregard 
such  acts  if  they  were  contrary  to  the  fundamental  maxims 
©f  morality,  or,  as  it  was  phrased,  to  the  laws  of  nature. 
Such  a  doctrine  was  thought  to  have  been  asserted  by  Eng- 

Supreme  Legislative  power,  we  thinli  is  absurd  In  itself.  Such  powers 
in  courts  would  be  destructive  of  liberty,  and  remove  all  security  of 
property."  For  the  reference  to  this  case,  and  a  number  of  others,  I  am 
indebted  to  a  learned  article  on  "  The  Relation  of  the  Judiciary  to  the 
Constitution  "  (19  Am.  Law  Rev.  175)  by  William  M.  Mei«s,  Esq.,  of  the 
Philadelphia  bar.  It  gives  all  the  earliest  cases.  [See  also  Symsbury 
Case,  KIrby,  448,  452  (1784)  ;  ib.  444  (1785). 1  The  first,  so  far  as  is 
now  Icnown,  was  the  unreported  New  Jersey  case  of  Holmes  v.  Walton, 
in  1780.  This  date  has  been  ascertained  by  Professor  (now  President) 
Scott,  of  Rutgers  College.  See  2  Am.  Hist.  Assoc.  Papers,  45  (1886). 
For  this  reference  I  am  indebted  to  the  courtesy  of  Mr.  Meigs  since  this 
paper  was  in  print. 

The  early  practice  of  repealing  Acts  which  had  been  held  unconstitu- 
tional is  significant.     Meigs,  in  10  Am.  Law  Rev.  188. 

[In  1755  the  Governor  of  Rhode  Island  was  also  elected  Chief  Jus- 
tice of  the  Superior  Court.     2  Arnold's  History  of  Rhode  Island,  194.] 

1  Dupuy  V.  Wickwire,  1  1).  ^hipman,  287. 


CONSTITUTIONAL  LAW  7 

lish  writers,  and  even  by  judges  at  times,  but  was  never 
acted  on.i  It  has  been  repeated  here,  as  matter  of  specula- 
tion, by  our  earlier  judges,  and  occasionally  by  later  ones; 
but  in  no  case  Avithin  my  knowledge  has  it  ever  l)een  enforced 
where  it  was  the  single  and  necessary  ground  of  the  decision, 
nor  can  it  be,  unless  as  a  revolutionary  measuro.- 

In  Swift's  "  System  of  the  La^ys^  of  Connecticut,''  pub- 
lished in  1795,^  the  author  argues  strongly  and  elaborately 
a^inst  the  power  of  the  judiciary  to  (Fisregard  a  legisla- 
tive enactment,  while  mentlonmg  tTiat  the  contrary  opinion 
"  is  very  popular  and  prevalent."'  "  It  will  be  agreed,"  he 
says,  "  it  is  as  probable  that  the  judiciary  will  declare  laws 
unconstitutional  which  are  not  so,  as  it  is  that  the  legisla- 
ture will  exceed  their  constitutional  authority."  But  he 
makes  the  very  noticeable  admission  that  there  may  be 
cases  so  monstrous,  —  e.  g.,  an  Act  authorizing  conviction 
for  crime  without  evidence,  or  securing  to  the  legislature 
their  own  seats  for  life,  —  "  so  manifestly  unconstitutional 
that  it  would  seem  wrong  to  require  the  judges  to  regard  it 
in  their  decisions."  As  late  as  j^07  andj_808,  judges  w-ere 
impeached  by  Jhe  legislature  of  Ohio  for  holding:  Acts  of 
that  body  to  be  void.^    . 

II.  When  at  last  this  power  of  the  judiciary  was  every- 
where established,  and  added  to  the  other  bulwarks  of  our 

'  [See  "The  Legislatures  and  the  Courts,"  Charles  B.  Elliott,  5  Pol. 
Sc.  Quarterly,  227,  232.] 

^  This  subject  is  well  considered  in  a  learned  note  to  Paxton's  Case 
(1761),  Quincy's  Rep.  51,  relating  to  Writs  of  Assistance,  understood 
[and  so  stated  by  Mr.  .Justice  Matthews  in  Hurtado  v.  California,  110 
IT.  S.  516,  526]  to  have  been  prepared  by  Horace  Gray,  Esq.,  now  Mr. 
.Justice  Gray,  of  the  Supreme  Court  of  the  United  States.  See  the  note 
at  pp.  520-530.  James  Otis  had  urged  in  his  argument  that  "  an  Act 
of  Parlianrent,  against  the  Constitution  is  void"  (Quincy,  56,  n.,  474). 
The  American  cases  sometimes  referred  to  as  deciding  that  a  legislative 
Act  was  void,  as  being  contrary  to  the  first  principles  of  morals  or  of 
government,  —  c.  g.,  in  Quincy,  520,  citing  Bowman  v.  Middleton,  1  Bay, 
252,  and  in  1  Bryce,  Am.  Com.,  431,  n.,  1st  ed.,  citing  Gardner  v.  New- 
burgh,  2  Johns.  Ch.  Rep.  162,  —  will  be  found,  on  a  careful  examination, 
to  require  no  such  explanation. 

^  Vol.  i.  pp.  50  et  seq. 

*  Cooley,  Const.  Lim.,  6th  ed.,  193,  n.  ;  1  Chase's  Statutes  of  Ohio, 
preface,  38-40.  For  the  last  reference  I  am  indebted  to  my  colleague 
I'rofessor  Wambaugh.  [See  also  "The  I.,egislatures  and  the  Courts," 
5  Pol.  Sc.  Quarterly,  251,  252.] 


8  LEGAL  ESSAYS 

Nvritten  constitutions,  how  was  the  power  to  be  conceived 
of?  Strictly  as  a  judicial  one.  The  State  constitutions 
had  been  scrupulous  to  part  off  the  powers  of  government 
into  three;  and  in  giving  one  of  them  to  each  department, 
had  sometimes,  with  curious  explicitness,  forbidden  it  to 
exercise  either  of  the  others.  The  legislative  department, 
said  the  Massachusetts  constitution  in  1780,^  — 

"  Shall  never  exercise  the  executive  and  judicial  powers,  or  either 
of  them;  the  executive  shall  never  exercise  the  legislative  and  judi- 
cial powers  or  either  of  them;  the  judicial  shall  never  exercise 
the  legislative  and  executive  powers  or  either  of  them ;  to  the  end, 
it  may  be  a  government  of  laws,  and  not  of  men." 

With  like  emphasis,  in  1792,  the  constitution  of  Kentucky  ^ 
said :  — 

"  Each  of  them  to  be  confided  to  a  separate  body  of  magistracy ; 
to  wit,  those  whicli  are  legislative  to  one,  those  which  are  executive 
to  another,  and  tliose  which  are  judiciary  to  another.  No  person  or 
collection  of  persons,  being  of  one  of  these  departments,  shall  ex- 
ercise any  power  properly  belonging  to  either  of  the  others,  except 
in  the  instances  hereinafter  expressly  permitted." 

Therefore,  since  the  power  now  in  question  was  a  purely 
judicial  one,  in  the  first  place,  there  were  many  cases  where 
i^iad  no  operation.  In  the  case  of  purely  political  acts 
and  of  the  exercise  of  mere  discretion,  it  mattered  not  that 
other  departments  were  violating  the  constitution,  JJie 
judiciary  could  noit  interfere;  on  the  contrary',  they  must 
accept  and  .enforce  theirafits.  Judge  Cooley  has  lately 
said :  ^  — 

"  The  common  impression  undoubtedly  is  that  in  the  case  of  any 
Je^slation_whereJtlieJ)quiii8^^  constitutional  authority  are  disre- 
garded, .  .  .  the  judiciary  is  perfectly  competent  to  aTfordthe  ade- 
quate remedy;  that  the  Act  indeed  must  be  void,  and  that  any 
citizen,  as  well  as  the  judiciary  itself,  may  treat  it  as  void,  and 
refuse  obedience.    This,  however,  is  far  from  being  the  fact." 

»  Part  I.  Art.  30. 

■■"  Art.  I. 

'  .Tournal  of  the  Michigan  Pol.  Sc.  Association,  vol.  i.  p.  47. 


CONSTITUTIONAL  LAW  9 

Again,  where  the  power  of  the  judiciary  did  have  place, 
its  whole  scope  was  this ;  namely,  to  deterinine..fQr, the  mere 
purpose  of  deciding_  a  litigated  q^uestion  properly  submitted  ^ 
to  Tho^coiirt,  whether  a  particular  disputed  exercise,  of '^ 
p()\v(M'  \v;is  rorMddeii  by  the  con.slitutioti.  In  doing  this  the 
court  was  so  to  discharge  its  office  as  not  to  deprive  another 
department  of  any  of  its  proper  power,  or  to  limit  it  in  the 
proper  range  of  its  discretion.  Not  merely,  then,  do  these 
questions,  when  presenting  themselves  in  the  courts  for 
judicial  action,  call  for  a  peculiarly  large  method  in  the 
treatment  of  them,  but  especially  they  require  an  allowance 
to  be  made  by  the  judges  for  the  vast  and  not  definable 
range  of  legislative  power  and  choice,  for  that  wide  margin 
of  considerations  which  address  themselves  only  to  the 
practical  judgment  of  a  legislative  body.  \Yithin__that 
margin  jLS_mnaag:_alLJJieS£_iegisIativ£^^ 
constitutional  law-makers  must  be  allowed  a  free  foot.  In 
so  far  as  legislative  choice,  ranging  here  unfettered,  may 
select  one  form  of  action  or  another,  the  judges  must  not 
interfere,  since  their  question  is  a  naked  judicial  one. 

Moreover,  such  is  the  nature  of  this  particular  judicial 
question  that  the  preliminary. jjejegniiiatioix  -by.  the  legisla- 
tjire  ia  a  fai±-a£  very  great  importance,  since  the  constitu- 
tions expressly  intrust  to  the  legislature  this  determination ; 
they  cannot  act  without  making  it.^  Furthermore,  the  con- 
stitutions not  merely  intrust  to  the  legislatures  a  prelim- 
inary determination  of  the  question,  but  they  contemplate 
that  this  determination  may  be  the  final  one;  for  they 
secure  no  revision  of  it.  It  is  only  as  litigation  may  spring 
up,  and  as  the  course  of  it  may  happen  to  raise  the  point 
of  constitutionality,  that  any  question  for  the  courts  can 

1  ["It  is  argued  that  the  lesislature  cannot  give  a  construction  to 
the  constitution,  relative  to  private  rights  secured  by  it. 

"  It  is  true  that  the  legislature,  in  consequence  of  their  construction 
of  the  constitution,  cannot  make  laws  repugnant  to  it.  But  every  depart- 
ment of  government,  invested  with  certain  constitutlo«al  powers,  must, 
in  the  first  instance,  but  not  exclusively,  be  the  Judge  of  its  powers,  or 
it  could  not  act.  And  certainly  the  construction  of  the  constitution  by 
the  legislature  ought  to  have  great  weight,  and  not  be  overruled,  unless 
manifestly  erroneous."    KendaILt?.  KlngstoiL  5  Mass.  524,  533.] 


10  LEGAL  ESSAYS 

regularly  emerge.     It  may  be,  then,  that  the  mere  legislar 
tive  decision  will  accomplish  results  throughout  the  country 
of  the  profoundest  importance  hefore  any-4ild.ieial  question 
can  arise^  or  be  decided^— as  in  th^case  of  the  first  and 
sjecond  charters  of  the  United  States  Bank,  amLolike.  legal 
tender  laws  of  thirty  years  ago  and  later.    The  constitution- 
ality of  a  bank  charter  divided  the  cabinet  of  Washington, 
as  it  divided  political  parties  for  more  than  a  generation. 
Yet  when  the  first  charter  was  given,  in  1791,  to  last  for 
L^K^    twenty  years,  it  ran  through  its  whole  life  uncliallenged  in 
the  courfsT^nd  was_ifiiiewed  in  1816.     Only  after  three 
years  from  that  did  the  question  of  its  constitutionality 
come  to  decision  in  the  Supreme  Court  of  the  United  States. 
It  is  peculiarly  important  to  observe  that  such  a  result  is  not 
an  exceptional  or  unforeseen  one ;   it  is  a  result  anticipated 
yixndi  clearly  foreseen.     Now,  it  is  the  legislature  to  whom 
Q    this  power  is  given,  —  this  power,  not  merely  of  enacting 
/  laws,n5^it  of  putting  an  interpretation  on  the  constitution 
\    which  shall  deeply  aifect  the  whole  countrv^nter  into, 
/    YJtally  change,  even  revolutionize  the  most  serious  affairs, 
/       except  as  some  individual  may  find  it  fQX.,his  ^private  in- 
l        forest  to  carry  the  matter  into  court.^      So  of  the  legal 
^    tender  legislation  of  1863  and  later.   More  important  action, 
more  intimately  and  more  seriously  touching  the  interests 
of  every  member  of  our  population,  it  would  be  hard  to 
think  of.    The  constitutionality  of  it,  although  now  upheld, 
was  at  first  denied  by  the  Supreme  Court  of  the  United 
States.  The  local  courts  were  divided  on  it,  and  professional 
opinion  has  always  been  divided.    Yet  it  was  the  legislature 
that  determined  this  question,  not  merely  primarily,  but 

^  [Compare  Tyler  v.  Judges  of  Court  of  Reffistration.  170  V .  S.  405. 
In  that  case  it  was  held  by  a  bare  majority  of  the  court  that  even  if  the 
Massachusetts  Land  Registration  Act  was  unconstitutional  as  divesting 
titles  to  land  without  notice  to  the  owners,  the  statute  could  still  not  be 
attacked  by  any  person  who  had  in  fact  received  notice  of  the  proceed- 
ings. Consequently  the  Land  Court  has  continued  in  active  operation 
since  1898,  while  if  it  had  been  possible  to  obtain  the  opinion  of  the 
Supreme  Court  on  the  grave  questions  upon  which  the  .Justices  of  the 
Supreme  .Tudicial  Court  of  Massachusetts  were  divided,  the  Land  Court 
might  have  been  held  to  be  a  tribunal  without  legal  authority.] 


CONSTITUTIONAL  LAW  11 

once  for  all,  except  as  some  individual,  among  the  innum- 
erable chances  of  his  private  affairs,  found  it  for  his  interest 
to  raise  a  judicial  question  about  it. 

It  is  plain  that  where  a  power  so  momentous  as  this 
primary  authority  to  interpret  is  given,  the  ji^tual,  deter- 
minations of  the  body  to  whom  it  is  intrusted. are  entitled 
to  a  corresponding  respect;  and  this  not  on  mere  grounds 
of  courtesy  or  conventional  respect,  but  on  very  solid  and 
significant  grounds  of  policy  and  law.  The  judiciary  may 
well  reflect  that  if  they  had  been  regarded  by  the  people  as 
the  chief  protection  against  legislative  violation  of  the 
constitution,  they  would  not  have  been  allowed  merely  this 
incidental  and  postponed  control.  They  would  have  been 
let  in,  as  it  was  sometimes  endeavored  in  the  conventions 
to  let  them  in,  to  a  revision  of  the  laws  before  they  began 
to  operate.^     As  the  opportunity  of  the  judges  to  check 

'  The  constitution  of  Colombia,  of  188C,  art.  84,  provides  that  the 
judges  of  the  Supreme  Court  may  take  part  in  the  legislative  debates 
over  "  bills  relating  to  civil  matters  and  judicial  procedure."  And  in  the 
case  of  legislative  bills  which  are  objected  to  by  "  the  government "  as 
unconstitutional,  if  the  legislature  insist  on  the  bill,  as  against  a  veto 
by  the  government,  it  shall  be  submitted  to  the  Supreme  Court,  which  is 
to  decide  upon  this  question  finally.  Arts.  90  and  150.  See  a  trans- 
lation of  this  coftstitution  by  Professor  Moses,  of  the  University  of  Cali- 
fornia, in  the  supplement  to  the  Annals  of  the  American  Academy  of 
Political  and  Social  Science,  for  January,  1893. 

We  are  much  too  apt  to  think  of  the  judicial  power  of  disregarding 
the  acts  of  the  other  departments  as  our  only  protection  against  oppres- 
sion and  ruin.  But  it  is  remarkable  how  small  a  part  this  played  in  any 
of  the  debates.  The  chief  protections  were  a  wide  suffrage,  short  terms 
of  office,  a  double  legislative  chamber,  and  the  so-called  executive  veto. 
There  was,  in  general,  the  greatest  unwillingness  to  give  the  judiciary 
any  share  in  the  law-making  power.  In  New  York,  however,  the  consti- 
tution of  1777  provided  a  Council  of  Revision,  of  which  several  of  the 
judges  were  members,  to  whom  all  legislative  Acts  should  be  submitted 
before  they  took  effect,  and  by  whom  they  must  be  approved.  That  ex- 
isted for  more  than  forty  years,  giving  way  in  the  constitution  of  1821 
to  the  common  expedient  of  merely  requiring  the  approval  of  the  execu- 
tive, or  in  the  alternative,  if  he  refused  it,  the  repassing  of  the  Act,  per- 
haps by  an  increased  vote,  by  both  branches  of  the  legislature.  In 
Pennsylvania  (Const,  of  1776,  s,  47)  and  Vermont  (Const,  of  1777,  s.  44) 
a  Council  of  Censors  was  provided  for,  to  be  chosen  every  seven  years, 
who  were  to  investigate  the  conduct  of  affairs,  and  point  out,  among 
other  things,  all  violations  of  the  constitution  by  any  of  the  departments. 
In  Pennsylvania  this  arrangement  lasted  only  from  1776  to  1790  ;  in 
Vermont  from  1777  to  1870.  In  framing  the  constitution  of  the  United 
States,  several  of  these  expedients,  and  others,  were  urged,  and  at  times 
adopted  ;  e.  g.,  that  of  New  York.  It  was  proposed  at  various  times  that 
the  general  government  should  have  a  negative  on  all  the  legislation  of 


12  LEGAL  ESSAYS 

and  correct  unconstitutional  Acts  is  so  limited,  it  may  help 
us  to  understand  why  the  extent  of  their  control,  when  they 
do  have  tlie  opportunity,  should  also  be  narrow. 

>  It  was,  then,  all  along  true,  and  it  was  foreseen,  that 
much  which  i8_Jiarmful__aad_iin£QastiiutipjmL^  ra       take 

'effect~without  any  capacity  in  the  courts  to  prevent  it, 
since  their  whole  power  is  a  judicial  one.  Their  interference 
was  but  one  of  many  safeguards,  and  its  scope  was  narrow. 
The  rigor  of  this  limitation  upon  judicial  action  is  some- 
times freely  recognized,  yet  in  a  perverted  way  which  really 
operates  to  extend  the  judicial  function  beyond  its  just 
bounds.     The__courfs_du|yy--we  are-^eldr  mere  and 

simple  office  of  construing  two  writings  and  comparing  one 
wttifattoffier,  .98  Two  "contracts  or  two  statutes  are  construed 
and  compared  when  they  are  said  to  conflict;  of^declanng 
the  true  meaning  of  each,  and,  if  they  are  opposed  to  each 
other,  of  carrying  into  effect  the  constitution  as  being  of 
superior  obligation,  —  an  ordinary  and  humble  judicial 
duty,  as  the  courts  sometimes  describe  it.  This  way  of  put- 
ting it  easily  results  in  the  wrong  kind  of  disregard  of  legis- 
lative considerations;  not  merely  in  refusing  to  let  them 
directly  operate  as  grounds  of  judgment,  but  in  refusing  to 
consider  them  at  all.    Instead  of  taking  them  into  account 

the  States ;  that  the  governors  of  the  States  should  be  appointed  by  the 
United  States,  and  should  have  a  negative  on  State  legislation  ;  that  a 
Privy  Council  to  the  President  should  be  appointed,  composed  in  part  of 
the  judges :  and  that  the  President  and  the  two  houses  of  Congress 
might  obtain  opinions  from  the  Supreme  Court.  But  at  last  the  con- 
vention, rejecting  all  these,  settled  down  upon  the  common  expedients  of 
two  legislative  houses,  to  be  a  check  upon  each  other,  and  of  an  executive 
revision  and  veto,  qualified  by  the  legislative  power  of  reconsideration 
and  enactment  by  a  majority  of  two-thirds ;  —  upon  these  expedients, 
and  upon  the  declaration  that  the  constitution,  and  constitutional  laws 
and  treaties,  shall  be  the  supreme  law  of  the  land,  and  shall  bind  the 
judges  of  the  several  States.  This  provision,  as  the  phrasing  of  1*  In- 
dicates, was  inserted  with  an  eye  to  secure  the  authority  of  the  general 
government  as  against  the  States,  i.  e.,  as  an  essential  feature  of  any 
efficient  Federal  system,  and  not  with  direct  reference  to  the  other  de- 
partments of  the  government  of  the  United  States  itself.  The  first  form 
of  it  was  that  "  legislative  Acts  of  the  United  States,  and  treaties,  are 
the  supreme  law  of  the  respective  States,  and  bind  the  judges  there  as 
against  their  own  laws."  ["Later,  the  Committee  on  Style  changed 
tlie  phrase  '  law  of  the  respective  States  '  to  '  law  of  the  land.'  But 
the  language,  as  to  binding  the  judges,  was  still  limited  to  the  judges 
of  the  several  States."    Thayer's  Marshall,  64.] 


CONSTITUTIONAL   LAW  13 

and  allowing  for  them  as  furnishing  possible  grounds  of 
legislative  action,  there  takes  place  a  pedantic  and  aca- 
demic treatment  of  the  texts  of  the  constitution  and  the 
laws.  And  so  we  miss  that  combination  of  a  lawyer's  rigor 
with  a  statesman's  breadth  of  view  which  should  be  found 
in  dealing  with  this  class  of  questions  in  constitutional 
law.^  Of  this  petty  method  we  have  many  specimens ; 
they  are  found  only  too  easily  to-day  in  the  volumes  of  our 
current  reports. 

In  order,  however,  to  avoid  falling  into  these  narrow  and 
literal  methods,  in  order  to  prevent  the  courts  from  for- 
getting, as  Marshall  said,  that  "  it  is  a  constitution  we  are 
expounding,"  these  literal  precepts  about  the  nature  of  the 
judicial  tasE  have  been  accompanied  by  a  rule  of  adminis- 
tration which_Jias---teBd«4r--*ft--competent  -  bands,  to  give 
matters  a  very  different  complexion. 

m.  LeFus  observe  the  course  which  the  courts,  in  point 
of  fact,  have  taken,  in  administering  this  interesting 
jurisdiction. 

They  began  by  resting  it  upon  the  very  simple  ground 
that  the  legislature  had  only  a  delegated  and  limited  author- 
it}^  under  the  constitutions;  that  these  restraints,  in  order 
to  be  operative,  must  be  regarded  as  so  iiuicli  law;   and,  as 

'  ["  While  this  is  a  body  of  law,  —  of  law  in  a  strict  sense,  as  dis- 
tinguished from  constitutional  history,  politics,  or  literature,  since  it 
deals  with  the  principles  and  rules  which  courts  apply  in  deciding  liti- 
gated cases  :  and  while,  therefore,  it  is  an  exact  and  technical  subject ; 
yet  it  has  that  quality  which  Phillipps,  the  writer  on  Evidence,  alluded 
to  when  he  said,  in  speaking  of  the  State  Trials,  that  '  The  study  of  the 
law  is  ennobled  by  an  alliance  with  history.'  The  study  of  Constitu- 
tional Law  is  allied  not  merely  with  history,  but  with  statecraft,  and 
with  the  political  problems  of  our  great  and  complex  national  life. 

"  In  this  wide  and  novel  field  of  labor  our  judges  have  been  pioneers. 
There  have  been  men  among  them,  like  Marshall,  Shaw,  and  Ruffln,  who 
were  sensible  of  the  true  nature  of  their  work  and  of  the  large  method 
of  treatment  which  it  required,  who  perceived  that  our  constitutions 
had  made  them,  in  a  limited  and  secondary  way,  but  yet  a  real  one, 
coadjutors  with  the  other  departments  in  the  business  of  government ; 
but  many  have  fallen  short  of  the  requirements  of  so  great  a  function. 
Even  under  the  most  favorable  circumstances,  in  dealing  with  such  a 
subject  as  this,  results  must  often  be  tentative  and  temporary.  Views 
that  seem  adequate  at  the  time  are  announced,  applied,  and  developed  ; 
and  yet,  by  and  by,  almost  unperceived,  they  melt  away  in  the  light  of 
later  experience,  and  other  doctrines  take  their  place."  1  Thayer's 
Const.  Cas.  Preface,  v.] 


14  LEGAL  ESSAYS 

being  law,  that  they  must  bejnterpreted  and  applied  by  the 
court.  This  was  put  as  a  mere  matter  of  course.  I' he 
reasoning  was  simple  and  narrow.  Such  was  Hamilton's 
method  in  the  Federalist,  in  1788,^  while  discussing  the 
Federal  constitution,  but  on  grounds  applicable,  as  he  con- 
ceived, to  all  others.  So,  in  1787,  the  Supreme  Court  of 
Xorth  Carolina  had  argued  thaflio  Act  of  theTegislafufe 
could  alter  the  constitution ;  -  thaf~the  judges  were~as 
much  bound  by  the  constitution  as  by  any  other  law,  and 
any  Act  inconsistent  with  it  must  be  regarded  by  them  as 
abrogated.  Wilson,  in  his  Lectures  at  Philadelphia  in 
1790-1791,2  said  that  the  constitution  was  a  supreme 
law,  and  it  was  for  the  judges  to  declare  and  apply  it ; 
what  wagrsuhordinatei'  must  give  way ;  because  one  branch 
of  the  government  infringed  the  constitution,  it  was  no 
reason  why  another  should  abet  it.  In  Virginia,  in  1793, 
the  judges  put  it  thai, courts  were  simply  to  look  at  all  the 
law,  includjngjhe  constitution :  they  were  only  to  expound 
the  law,  and  to  give  effect  to  that  part  of  it  which  is  funda- 
mental.* I^terson,  one  of  the  justices  of  the  Supreme 
Court  of  the  United  States,  in  1795,  on  the  Pennsylvania 

circuit,^  said  that  the  constitution  is  the  commission  oi'  the 

»^._ .  -  ~.  —   - 

legislature;  if  their  Acts  are  not  conformable  to  it,  thev 
are  without  authority.  In  1796,  in  South  Carolina,"'  ilic 
matter  was  argued  by  the  court  as  a  bald  and  mere  (juestion 
of  conformity  to  paramount  law.  And  sucli,  in  1802,  was 
the  reasoning  of  the  General  Court  of  Maryland."  Einally, 
inLj^Q3_jcanie- Marbury  iJ.  Madii^Qpy'^  with  the  same  severe 
line  of  t^jgniTnent.,^     The  people,  it  was  said,  have  ostal)- 


'   No.    78.    first    published    on    May    28,    1788.      See    Lodge's    edition, 
pp.  xxxvi  and  xliv. 

2  Den  d.  Bayard  v.  Singleton,  1  Martin,  42. 
»  Vol.  i.  p.  460. 

*  Kamper  v.  Flawlsins,  1  Va.  Cas.  20. 

*  Vanhorne's  I^essee  v.  Dorrance,  2  Dall.  304. 
"  Lindsay  v.  Com'rs,  2  Bay,  38. 

'  Whlttington  v.  Polk.  1  H.  &  .J.  236. 
"  1  Cranch,  137. 

»   rSee  Professor  Thayer's  discussion  of  Marbury  v.  Madison  in  his 
memoir  of  Chief  .Justice  Marshall,  pp.  72-79,  84,  95-101.1 


CONSTITUTIONAL  LAW  15 

lished    ^i[ritten    limitations    upon  the    legislature;    these    IhafVM/ 
control  all  repugnant  legislative  Acts;    such  Acts  are  not  |y\tdtU< 
law;    thisthcorv  is;  essentially  attached  to  a  written  con-\ 
stitution;  it  is  lox-  the  judieian-  to  say  wluit  the  law  is,  smiy^^^'^a 
Jf  two  rides  conflict,  to  say  which  governs;    the  judiciary 
are  to  declare  a  legislative  Act  void  which  conflicts  with  the 
constitution,  or  else  that  instimnent  i^  reduced  to  nothing. 
And  then,  it  was  added,_iQ-4b€-^^€^ral  instrument  this 
pow'eris... expressly  given. 

Nothing  could  be  more  rigorous  than  all  this.  As  the 
matter  was  put,  the  conclusions  were  necessary.  Much  of 
this  reasoning,  however,  took  no  notice  of  the  remarkable 
peculiarities  of  the  sitng^ti^n  ;  it  went  forward  as  smoothly 
as  if  the  constitution  were  a  private  letter  of  attorney,  and 
the  court's  duty  under  it  were  precisely  like  any  of  its  mos,t 
^Illifla.D1.5£^lI9itions.^ 

1  f'The  reasoning  is  mainly  that  of  Hamilton,  in  his  short  essay  of 
a  few  years  before  in  the  '  Federalist.'  The  short  and  dry  treatment 
of  the  subject,  as  being  one  of  no  real  difficulty,  is  in  sharp  contrast  with 
the  protracted  reasoning  of  McCulloch  v.  Maryland,  Cohens  v.  Virginia, 
and  other  great  cases ;  and  this  treatment  is  much  to  be  regretted. 
Absolutely  settled  as  the  general  doctrine  is  to-day,  and  sound  as  it  is, 
when  regarded  as  a  doctrine  for  the  descendants  of  British  colonists, 
there  are  grave  and  far-reaching  considerations  —  such,  too,  as  affect 
to-day  the  proper  administration  of  this  extremely  important  power  — 
which  are  not  touched  by  Marshall,  and  which  must  have  commanded  his 
attention  if  the  suljject  had  l>een  deeply  considered  and  fully  exnounded 
according  to  his  later  method.  His  reasoning  does  not  answer  the  diffi- 
culties that  troubled  Swift,  afterwards  chief  justice  of  Connecticut,  and 
Gibson,  afterwards  chief  justice  of  Pennsylvania,  and  many  other  strong, 
learned,  and  thoughtful  men  ;  not  to  mention  Jefferson's  familiar  and 
often  ill-digested  objections. 

"  It  assumes  as  an  essential  feature  of  a  written  constitution  what  does 
not  exist  in  any  one  of  the  written  constitutions  of  Europe.  It  does  not 
remark  the  grave  distinction  between  the  power  of  disregarding  the  act 
of  a  co-ordinate  department,  and  the  action  of  a  federal  court  in  dealing 
thus  with  the  legislation  of  the  local  States :  a  distinction  important 
in  itself,  and  observed  under  the  written  constitutions  of  Europe,  which, 
as  I  have  said,  allow  this  power  in  the  last  sort  of  case,  while  denying 
it  in  the  other. 

"  riad  Marshall  dealt  with  this  subject  after  the  fashion  of  his  greatest 
opinions  he  must  also  have  considered  and  passed  upon  certain  serious 
suggestions  arising  out  of  the  arrangements  of  our  own  constitutions 
and  the  exigencies  of  the  different  departments.  All  the  departments, 
and  not  merely  the  judges,  are  sworn  to  support  the  Constitution.  All 
are  bound  to  decide  for  themselves,  in  the  first  instance,  what  this 
instrument  requires  of  them.  None  can  have  help  from  the  courts 
unless,  in  course  of  time,  some  litigated  case  should  arise  ;  and  of  some 
questions  it  is  true  that  they  never  can  arise  in  the  way  of  litigation. 


16  LEGAL  ESSAYS 

But  these  simple  precepts  were  supplemented  by  a  very 
significant  rule  of  administration,  —  one  which  corrected 
their  operation,  and  brought  into  play  large  considerations 
not  adverted  to  in  the  reasoning  so  far  mentioned.  In 
1811,1  Chief  Justice  Tilghman,  of  Pennsjdvania,  while 
assertmg  the  iLOwer^of  the  courtto^  hold  laws  unconstitu- 
tinnal,  -buixieclijiing  to  exercise  it  in  a  particular  case^ 
stated  this  rule  as  follows :  — 

What  was  Andrew  Johnson  to  do  when  the  Reconstruction  Acts  of  1867 
had  been  passed  over  his  veto  by  the  constitutional  majority,  while  his 
veto  had  gone  on  the  express  gi'ound,  still  held  by  him,  that  they  were 
unconstitutional?  He  had  sworn  to  support  the  Constitution.  Should 
he  execute  an  enactment  which  was  contrary  to  the  Constitution,  and  so 
void  ?  Or  should  he  say,  as  he  did  say  to  the  court,  through  his  Attorney- 
General,  that  '  from  the  moment  (these  laws)  were  passed  over  his  veto, 
there  was  but  one  duty,  in  his  estimation,  resting  upon  him,  and  that 
was  faithfully  to  carry  out  and  execute  these  laws'?('')  And  why  is 
he  to  say  this? 

"  Again,  what  is  the  House  of  Representatives  to  do  when  a  treaty, 
duly  made  and  ratified  by  the  constitutional  authority,  namely,  the 
President  and  Senate,  comes  before  it  for  an  appropriation  of  money 
to  carry  it  out?  Has  the  House,  under  these  circumstances,  anything 
to  do  with  the  question  of  constitutionality?  If  it  thinks  the  treaty 
unconstitutional,  and  so  void,  can  it  vote  to  carry  it  out?  If  it  can, 
how  is  this  justified? 

"  Is  the  situation  necessarily  different  when  a  court  is  asked  to  enforce 
a  legislative  act?  The  courts  are  n^  strangera._to_tli£_caafe_of_£plitical 
questions,  where  t&g^ J!lUi1srrCSI5s&-tQ,  int.e.rier£_js:ith__the  acts  of  the 
pther  departments,  —  as  in  the  case  relating  to  Andrew  JohnSOH  just 
referred  to ;  and  in  dealing  with  what  are  construed  to  be  merely  di- 
rectory provisions  of  the  Constitution  ;  and  with  the  cases,  well  approved 
in  the  Supreme  Court  of  the  United  States,  where  courts  refuse  to 
consider  whether  provisions  of  a  constitution  have  been  complied  with, 
which  require  certain  formalities  in  passing  laws,  —  accepting  as  final 
the  certificate  of  the  officers  of  the  political  departments.  A  question, 
passed  upon  by  those  departments,  is  thus  refused  any  discussion  in 
the  judicial  forum,  on  the  ground,  to  quote  the  language  of  the  Supreme 
Court,  that  '  the  respect  due  to  coequal  and  independent  departments 
requires  the  judicial  department  to  act  upon  this  assurance.' 

"  So  far  as  any  necessary  conclusion  is  concerned,  it  might  fairly  have 
been  said,  with  us,  as  it  Is  said  in  Europe,  that  the  real  question  in  all 
these  cases  ij_aat_jEiiethex  the  act  is  constltationa  1,  .but-whether  its 
constitutionality  can  properly  be  brought  in  question  before  a  given 
TrTBunfll.'  TTould  Marshall  have  had  to  deal  witli  this  great  question, 
in  answer  to  Chief  Justice  Gibson's  powerful  opinion  in  Eakin  v.  Raub, 
in  1825,(*)  instead  of  deciding  It  without  being  helped  or  hindered  by 
any  adverse  argument  at  all,  as  he  did,  we  should  have  had  a  far 
higher  exhibition  of  his  powers  than  the  case  now  affords."  Thayer's 
Marshall,  96-101.] 

>  Com.  V.  Smith,  4  Bin.  117. 

{«)  Mississippi  V.  Johnson,  4  Wallace,  475,  401'  (1866). 
(*)    12  S.  &  R.  330;   s.  c.  1  Thayer's  Const.  Cas.  133. 


CONSTITUTIONAL   LAW  17 

"  For  weighty  reasons,  it  has  been  assumed  as  a  principle  in  con- 
stitutional construction  by  the  Supreme  Court  of  the  United  States, 
by  this  court,  and  every  other  court  of  reputation  in  the  United 
States,  that  an  Act  of  the  Legislature  is  not  to  be  declared  void 
unless  the  violation  of  the  constitution  is  so  manifest  as  to  leave  no 
room  for  reasonable  doubt." 

When  did  this  rule  of  administration  begin  ?  Verv  early. 
We  observe  that  it  is  referred  to  as  thoroughly  established 
in  1811.  In  the  earliest  judicial  consideration  of  the  power 
of  the  judiciary  over  this  subject,  of  which  any  report  is 
preserved,  —  an  obiter  discussion  in  Virginia  in  1782,^  — 
while  the  general  power  of  the  court  is  declared  by  other 
judges  with  histrionic  emphasis,  Pendleton,  the  president 
of  the  court,  in  declining  to  pass  upon  it,  foreshadowed  the 
reasons  of  this  rule,  in  remarking,  — 

"  How  far  this  court,  in  whom  the  judiciary  powers  may  in  some 
sort  be  said  to  be  concentrated,  shall  have  power  to  declare  the 
nullity  of  a  law  passed  in  its  forms  by  the  legislative  power,  with- 
out exercising  the  power  of  that  branch,  contrary  to  the  plain  terms 
of  that  constitution,  is  indeed  a  deep,  important,  and,  I  will  add, 
a  tremendous  question,  the  decision  of  which  would  involve  con- 
sequences to  which  gentlemen  may  not  .  .  .  have  extended  their 
ideas." 

There  is  no  occasion,  he  added,  to  consider  it  here.  In 
1793,  when  the  General  Court  of  Virginia  held  a  law 
unconstitutional,  Tyler,  Justice,  remarked,^  — 

"  But  the  violation  must  be  plain  and  clear,  or  there  might  be 
danger  of  the  judiciary  preventing  the  operation  of  laws  which 
might  produce  much  jublic  good." 

In  the  Federal  convention  of  1787,  while  the  power  of 
declaring  laws  unconstitutional  was  recognized,  the  limits  Qj^^^^^J^ 
of  the  poweF'were  'also  admitted.     In  trying  to  make  the 
judges  re"vise~aTr'TegigfetiTe  Acts  before  they  took  effect, 

'  Com.  V.  Caton,  4  Call,  5. 

"  Kamper  v.  Hawkins.  1  Va.  Cases,  p.  60. 

2 


18  LEGAL  ESSAYS 

Wilson  pointed  out  that  laws  might  be  dangerous  and 
destructive,  and  yet  not  so  "  unconstitutional  as  to  justify 
the  judges  in  refusing  to  give  them  effect."  ^  In  1796 
Mr.  Justice  Chase,  in  the  Supreme  Court  of  the  United 
States,2  said,  that  without  then  determining  whether  the 
court  had  power  to  declare  an  Act  of  Congress  void,  "  I  am 
free  to  declare  that  1  will  never  exercise  it  but  in  a  very 
clear  case."  And  in  1800,  in  the  same  court,^  as  regards  a 
statute  of  Georgia,  Mr.  Justice  Patterson,  who  had  already, 
in  1795,  on  the  circuit,  held  a  legislative  Act  of  Pennsyl- 
vania invalid,  said  that  in  order  to  justify  the  court  in 
declaring  any  law  void,  there  must  be  "  a  clear  and  une- 
quivocal breach  of  the  Constitution,  not  a  doubtful  and 
argumentative  implication." 

In  1808  in  Georgia  ■*  it  was  strongly  put,  in  a  passage 
which'  has  been  cited  by  other  courts  with  approval.  In 
holding  an  Act  constitutional.  Ml  Justice  Charlton^  for 
the  court,  asserted  this  power,  as  being  inseparable  from 
the  organization  of  the  judicial  department.  But,  he  con- 
tinued, in  what  manner  should  it  be  exercised? 

"  No  nice  doubts,  no  critical  exposition  of  words,  no  abstract  rules 
of  interpretation,  suitable  in  a  contest  between  individuals,  ought 
to  be  resorted  to  in  dgciding^on  the  constitutional  operation  of  a 
statute.  Tliis-  violation.  o£ji. -constitutional  rigJtXxHiglit  to  be  as 
obvious  to  the  comprehension  of  every  one  as  an  axiomatic  truth, 
as^  that  the  parts  are  equal  to  the  whole.  I  shall  endeavor  to  illus- 
trate this :  the  first  section  of  the  second  article  of  the  constitution 
declares  that  the  executive  function  shall  be  vested  in  the  governor. 
Now.  if  tlie  legislature  were  to  vest  the  executive  power  in  a  stand- 
ing committee  of  the  House  of  Representatives,  every  mind  would  at 
once  perceive  the  unconstitutionality  of  the  statute.  The  judiciary 
would  be  authorized  without  hesitation  to  declare  the  Act  unconsti- 
tutional. But  when  it  remains  doubtful  whether  the  legislature 
have  or  have  not  trespassed  on  the  constitution,  a  conflict  ought  to 
be  avoided,  because  there  is  n  pnssiiulitv  in  such  a  case  of  the  con- 
stitution being  with  the  legislature." 

»  5  Ell.  Deb.  844. 
2  Ware  v.  Hylton.  3  Dall.  171. 
=  Cooper  V.  Telfair,  4  Dall.  14. 
*  Grimball  v.  Ross,  Charlton,  175. 


CONSTITUTIONAL   LAW  19 

In  South  Carolina,  in  1812/  Chancellor  Waties,  always 
distinguished  for  his  clear  assertion  of  t-hf>  pnwpr  \r)  i\\p 
judiciary  to  disregard  unconstitutional  p^^ptTTipnts  repeats 
ajid  strongly  reaffirms  it:  — 

"  I  feel  so  strong  a  sense  of  this  duty  that  if  a  violation  of  the"^ 
constitution  were  manifest,  I  should  not  only  declare  the  Act  void,  f 
but  I  should  think  I  rendered  a  more  important  service  to  my  coun- 
try than  io.i}i^p1^g''gi"g  thp  nrdinary  tlntips  of  my  office  fpr  many 
years.  .  .  .  But  while  I  assert  this  power  and  insist  on  its  great 
value  to  the  country,  I  am  not  insenaihle  of  tlip  higrh  deference  dua 
to  legislative  authority.  It  is  supreme  in  all  cases  where  it  is  not 
restrained  by  the  constitution ;  and  as  it  is  the  duty  of  legislators 
as  welT'as'Judges  to  consult  this  and  conform  their  acts  to  it,  so  it 
should  be  presumed  that  all  their  acts  do  conform  to  it  unless  the 
contrary  is  manifest.  This  confidence  is  necessary  to  insure  due 
obedience  to  its  authority.  If  this  be  frequently  questioned,  it  must 
tend  to  diminish  the  reverence  for  the  laws  which  is  essential  to  the 
public  safety  and  happiness.  I  am  not,  therefore,  disposed  to  ex- 
amine with  scrupulous  exactness  the  validity  of  a  law.  It  would  be 
unwise  on  another  account.  Tlie  interference  of  the  judiciary  with 
legislative  Acts,  if  frequent  or  on  dubious  grounds,  might  occasion 
so  great  a  jealousy  of  this  power  and  so  general  a  prejudice  against 
it  as  to  lead  to  measures  ending  in  the  total  overthrow  of  the  in-  ■ 
dependence  of  the  judges,  and  so  of  the  best  preservative  of  the  con- 
stitution. The  validity  of  the  law  ought  not  then  to  be  questioned 
unless  it  is  so  obviously  repugnant  to  the  constitution  that  when 
pointed  out  by  the  judges^  all  mtpn  ftf  fipngp  ""'i  T-oflo^figi^  in  iVio 
community  may  perceive  the  repugnancy.  By  such  a  cautious  exer- 
cise of  this  judicial  check,  no  jealousy  of  it  will  be  excited,  the  pub- 
lic confidence  in  it  will  be  promoted,  and  its  salutary  effects  be 
justly  and  fully  appreciated."  - 

'  Adm'rs  of  Byrne  v.  Adm'rs  of  Stewart,  3  Des.  466. 

-  This  well-known  rule  is  laid  down  by  Cooley  (Const.  Lim..  6th  ed., 
216),  and  supported  by  emphatic  .iudicial  declarations  and  by  a  long  list 
of  citations  from  all  parts  of  the  country.  In  Ogden  v.  Saunders,  12 
Wheat.  213  (1827),  Mr.  Justice  Washington,  after  remarking  that  the 
question  was  a  doubtful  one,  said  :  "  If  I  could  rest  my  opinion  in  favor 
of  the  constitutionality  of  the  law  ...  on  no  other  ground  than  this 
doubt,  so  felt  and  acknowledged,  that  alone  would,  in  my  estimation, 
be  a  satisfactory  vindication  of  it.  It  is  but  a  decent  respect  due  to  the 
.  .  .  legislative  body  by  which  any  law  is  passed,  to  presume  in  favor 
of  its  validity,  until  its  violat'on  of  the  constitution  is  proved  beyond 
all  reasonable  doubt.  This  has  always  been  the  language  of  this  court 
when  that  subject  has  called  for  its  decision ;    and  I  know  it  expresses 


20  LEGAL  ESSAYS 

IV.  I  have  accumulated  these  citations  and  run  them 
back  to  the  beginning,  in  order  that  it  may  be  clear  that 


the  honest  sentiments  of  each  and  every  member  of  this  bench."  In 
the  Sinking  Fund  Cases.  99  tl.  S.  700  (1878),  Chief  Justice  Waite, 
for  the  court,  said:  "This  deciaration  (that  an  Act  of  Congress  is 
unconstitutional)  should  never  be  made  except  in  a  clear  case.  Every 
possible  presumption  is  in  favor  of  the  validity  of  a  statute,  and  this 
continues  until  the  contrary  is  shown  beyond  a  rational  doubt.  One 
branch  of  the  government  cannot  encroach  on  the  domain  of  another 
without  danger.  The  safety  of  our  institutions  depends  in  no  small 
degree  on  a  strict  observance  of  this  salutary  rule."  In  Wellington  et 
al..  Petitioners,  16  Pick.  87  (1834),  Chief  Justice  Shaw,  for  the  court, 
remarked  that  it  was  proper  "  to  repeat  what  has  been  so  often  sug- 
gested by  courts  of  justice,  that  when  called  upon  to  pronounce  the 
invalidity  of  an  Act  of  legislation  (they  will)  never  declare  a  statute 
void  unless  the  nullity  and  invalidity  of  the  Act  are  placed,  in  their 
Judgment,  beyond  reasonable  doubt."  In  Com.  v.  Five  Cents  Sav.  Bk., 
5  Allen,  428  (1862),  Chief  Justice  Bigelow,  for  the  court,  said:  "It 
may  be  well  to  repeat  the  rule  of  exposition  which  has  been  often 
enunciated  by  this  court,  that  where  a  statute  has  been  passed  with  all 
the  forms  and  solemnities  required  to  give  it  the  force  of  law,  the 
presumption  is  in  favor  of  its  validity,  and  that  the  court  will  not 
declare  it  to  be  .  .  .  void  unless  its  invalidity  is  established  beyond 
reasonable  doubt."  And  he  goes  on  to  state  a  corollary  of  this  "  well- 
established  rule."  In  Ex  parte  M'Collum,  1  Cow.,  p.  564  (182.'?),  Cowen, 
J.  (for  the  court),  said:  "Before  the  couut  will  deem  it  their  duty 
to  declare  an  Act  of  the  legislature  unconstitutional,  a  case  must  be 
presented  in  which  there  can  be  no  rational  doubt."  In  People  v.  Su- 
pervisors of  Orange,  17  N.  Y.  235  (1858),  Harris,  J.  (for  the  court), 
said  :  "  A  legislative  Act  is  not  to  be  declared  void  upon  a  mere  con- 
flict of  interpretation  between  the  legislative  and  the  judicial  power. 
Before  proceeding  to  annul,  by  judicial  sentence,  what  has  been  en- 
acted by  the  law-making  power,  it  should  clearly  appear  that  the  Act 
cannot  be  supported  by  any  reasonable  intendment  or  allowable  pre- 
sumption." In  Perry  v.  Keene.  56  N.  11.  514,  534  (1876),  Ladd,  J. 
(with  the  concurrence  of  the  rest  of  the  court),  said:  "Certainly  it 
is  not  for  the  court  to  shrink  from  the  discharge  of  a  constitutional 
duty  ;  but,  at  the  same  time,  it  is  not  for  this  branch  of  the  government 
to  set  an  example  of  encroachment  upon  the  province  of  the  others. 
It  is  only  the  enunciation  of  a  rule  that  is  now  elementary  in  the  Ameri- 
can States,  to  say  that  before  we  can  declare  this  law  unconstitutional, 
we  must  be  fully  satisfied  —  satisfied  beyond  a  reasonable  doubt  — 
that  the  purpose  for  which  the  tax  is  authorized  is  private,  and  not 
public."  In  Cincinnati,  etc.,  Railroad  Company  r.  Cora"rs,  1  Oh.  St. 
77  (1852),  Ranney,  J.  (for  the  court),  said:  "While  the  right  and 
duty  of  interference  in  a  proper  case  are  thus  undeniably  clear,  the 
principles  by  which  a  court  should  be  guided  in  such  an  inquiry  are 
equally  clear,  both  upon  principle  and  authority.  ...  It  is  only  when 
manifest  assumption  of  authority  and  clear  incompatibility  between  the 
constitution  and  the  law  appear,  that  the  judicial  power  can  refuse 
to  execute  it.  Such  interference  can  never  be  permitted  in  a  doubtful 
case.  And  this  results  from  the  very  nature  of  the  question  involved 
in  the  inquiry.  .  .  .  The  adjudged  cases  speak  a  uniform  iangiiage  on 
this  subject.  ...  An  unbroken  chain  of  decisions  to  the  same  effect 
is  to  be  found  in  the  State  courts."  In  Syndics  of  Brooks  v.  Weyman, 
3  Martin  (La.),  9,  12  (1813),  it  was  said  by  the  coiyt :  "We  reserve 
to  ourselves  the  authority  to  declare  null  any  legislatiVe  Act  which  shall 


CONSTITUTIONAL  LAW  21 

the  rule  in  question  is  something  more  than  a  mere  form 
of  language,  a  mere  expression  of  courtesy  and  deference. 
It  means  far  more  than  that.  The  courts  have  perceived 
with  more  or  less  distinctness  that  this  exercise  of  the 
judicial  function  does  in  truth  go  far  beyond  the  simple 
business  which  judges  sometimes  describe.  If  their  duty 
were  in  truth  merely  and  nakedly  to  ascertain  the  meaning 
of  the  text  of  the  constitution  and  of  the  impeached  Act  of 
the  legislature,  and  to  determine,  as  an  academic  question, 
whether  in  the  court's  judgment  the  two  were  in  conflict,  it 
would,  to  be  sure,  be  an  elevated  and  important  office,  one 
dealing  with  great  matters,  involving  large  public  consider- 
ations, but  yet  a  function  far  simpler  than  it  really  is. 
Having  ascertained  all  this,  yet  there  remains  a  question  — 
the  really  momentous  question  —  whether,  after  all,  the 
court  can  disregard  the  Act.  It  cannot  do  this  as  a  mere 
matter  of  course,  —  merely  because  it  is  concluded  that 
upon  a  just  and  true  construction  the  law  is  unconstitu- 
tional. That  is  precisely  the  significance  of  the  rule  of 
administration  that  the  courts  lay  down.  It  can  only  dis- 
regard the  Act  when  those  who  have  the  right  to  make 
laws  hav(^  Tjftt  mpT-ply  mflTdp  q,  mistake,,  but  havje^  made  a 
vpry  clpar  one.  —  so  clear  that  it  is  not  open  to  rational 
question.  That  is  the  standard  of  duty  to  which  the  courts 
bring  legislative  Acts ;  that  is  the  test  which  they  apply,  — 
not  merely  their  own  judgment  as  to  constitutionality,  but 
their  conclusion  as  to  what  judgment  is  permissible  to  an- 


be  repugnant  to  the  constitution  ;  but  it  must  be  manifestly  so,  not 
susceptible  of  doubt."  (Cited  with  approval  in  Johnson  v.  Duncan, 
ib.  539.)  In  Gotten  v.  County  Commissioners,  6  Fla.  610  (1856). 
Dupont,  J.  (for  the  court),  said:  "It  is  a  most  grave  and  Important 
power,  not  to  be  exercised  lightly  or  rashly,  nor  in  any  case  where 
it  cannot  be  made  plainly  to  appear  that  the  legislature  has  exceeded 
its  powers.  If  there  exist  upon  the  mind  of  the  court  a  reasonable 
doubt,  that  doubt  must  be  given  in  favor  of  the  law.  ...  In  further 
support  of  this  position  may  be  cited  any  number  of  decisions  by  the 
State  courts.  ...  If  there  be  one  to  be  found  which  constitutes  an 
exception  to  the  general  doctrine,  it  has  escaped  our  search." 

[See  also  Livingston  v.  Van  Ingen,  9  Johns.  507,  572,  573  :  In  re 
Northampton.  158  Mass.  299,  304 ;  People  v.  Rosenberg,  138  N.  Y. 
410,  415;    Interstate  Uy.  Co.  v.  Massachusetts,  207  U.  S.  79,  88.] 


22  LEGAL  ESSAYS 

other  department  which  the  constitution  has  charged  with 
the  duty  of  making  it.  This  rule  recognizes  that,  having 
regard  to  the  great,  complex,  ever-unfolding  exigencies  of 
government,  much  which  will  seem  unconstitutional  to  one 
man,  or  bod}'  of  men,  may  reasonably  not  seem  so  to  an- 
other; that  the  constitution  often  admits  of  different_inter- 
p^tations;  that  there  is  often  a  range  ^f^ choice  and  judg- 
mentj.„  that  in  sii^h  ca.sps  thp  nnnfititntinTi  does  not  jmpose 
upon_the  legislature  any  one  specific  opinion^,  but  leaves 
open  this  range  of  choice;  _and  that  whatever  choice  is 
rational  is  constitutional.  This  is  the  priiiciple  which  the 
rule  that  I  have  been  illustrating  affirms  and  supports. 
The  meaning  and  effect  of  it  are  shortly  and  very  strikingly 
intimated  by  a  remark  of  Judge  Cooley,^  to  the  effect  that 
one_who  is  a^member  of  a  legislature  may  vote  agqinat  a 
measure  as Jjeino;^  in  his  judgment,  unconstitutional ;  and, 
being  subsequently  placed  on  the  bench,  when  this  measure, 
having  been  passed  by  the  legislature  in  spite  of  his  oppo- 
sition, comes  before  him  judicially,  may  there  find  it  his 
duty,  although  he  has  in  no  degree  changed  his  opinion,  to 
declare  it  constitutional. 

Will  any  one  say,  You  are  over-emphasizing  this  matter, 
and  making  too  much  turn  upon  the  form  of  a  phrase  ?  No, 
I  think  not.  I  am  aware  of  the  danger  of  doing  that.  But 
whatever  may  be  said  of  particular  instances  of  unguarded 
or  indecisive  judicial  language,  it  does  not  appear  to  me 
possible  to  explain  the  early,  constant,  and  emphatic  state- 
ments upon  this  subject  on  any  slight  ground.  The  form 
of  it  is  in  language  too  familiar  to  courts,  having  too  defi- 
nite a  meaning,  adopted  with  too  general  an  agreement, 
and  insisted  upon  quite  too  emphatically,  to  allow  us  to 
think  it  a  mere  courteous  and  smoothly  transmitted  plati- 
tude. It  has  had  to  maintain  itself  against  denial  and  dis- 
pute. Incidentally,  Mr.  Justice  Gibson  disputed  it  in  1825, 
while  denying  the  whole  power  to  declare  laws  unconstitu- 

»  Const.  Tiim.,  6th  ed.,  68  ;  cited  with  approval  by  Bryce,  Am.  Com., 
1st  ed.,  1.  431. 


CONSTITUTIONAL  LAW  23 

tional.^  If  there  be  any  such  power,  he  insisted  (page 
352),  the  party's  rights  "would  depend,  not  on  the  great- 
ness of  the  supposed  discrepancy  with  the  constitution,  but 
on  the  existence  of  any  discrepancy  at  all."  But  the  major- 
ity of  the  court  reaffirmed  their  power,  and  the  qualifica- 
tions of  it,  with  equal  emphasis.  This  rule  was  also  denied 
in  1817  by  Jeremiah  Mason,  one  of  the  leaders  of  the  ^ew 
England  bar,  in  his  argument  of  the  Dartmouth  College 
case,  at  its  earlier  stage,  in  New  Hampshire.-  He  said 
substantially  this :  "  An  erroneous  opinion  still  prevails 
to  a  considerable  extent,  that  the  courts  .  .  .  ought  to 
act  .  .  .  with  more  than  ordinary  deliberation,  ,  .  .  that 
they  ought  not  to  declare  Acts  of  the  legislature  unconsti- 
tutional unless  they  come  to  their  conclusion  with  absolute 
certainty,  .  .  .  and  where  the  reasons  are  so  manifest  that 
none  can  doubt."  He  conceded  that  the  courts  should  treat 
the  legislature  "  with  great  decorum,  .  .  .  but  .  .  .  the 
final  decision,  as  in  other  cases,  must  be  according  to  the 
unbiassed  dictate  of  the  understanding."  Legislative  Acts, 
he  said,  require  for,  their  passage  at  least  a  ma  joritv  of  -the 
legislature,  and  the  reasons  against  the  validity  of  the  Act 
cannot  ordinarily  be  so  plain  as  to  leave  no  manner  of  doubt. 
The  rule,  then,  really  requires  the  court  to  surrender  its 
jurisdiction.  "  Experience  show^s  that  legislatures  are  in 
TEe  constant  habit  of  exerting  their  power  to  its  utmost- 
extent."  If  the  courts  retire,  whenever  a  plausible  ground 
of  doubt  can  be  suggested,  the  legislature  will  absorb  all 
power.  Such  was  his  argument.  But  notwithstanding 
this,  the  Supreme  Court  of  New  Hampshi re  declared  .that 
they  could  not  act  without  "  a  clea^and  strong  conviction ;  " 
and  on  error,  in  18 i9,  Marshall,  in  his  celebrated  opinion 
at  Washington,  declared,  for  the  court,  "  that  in  no  doubt- 
ful case  would  it  pronounce  a  legislative  Act  to  be  contrary 
to  the  Constitution." 

Again,  when  the  great  Charles  River  Bridge  Case^  was 

'  Eakin  v.  Raub,  12  S.  &  R.  330. 
=  Farrars  Rep.  Dart.  Coll.  Case,  36. 
3  7  Pick.  344. 


24  LEGAL  ESSAYS 

before  the  Massachusetts  courts,  in  1829,  Daniel  Webster, 
arguing,  together  with  Lemuel  Shaw,  for  the  plaintiff, 
denied  the  existence  or  propriety  of  this  rule.  All  such 
cases,  he  said  (p.  442),  involve  some  doubt;  it  is  not  to  be 
supposed  that  the  legislature  will  pass  an  Act  palpably 
unconstitutional.  The  correct  ground  is  that  the  court  will 
interfere  when  a  case  appearing  to  be  doubtful  is  made 
out  to  be  clear.  Besides,  he  added,  "  members  of  the  legis- 
lature sometimes  vote  for  a  law,  of  the  constitutionality  of 
which  they  doubt,  on  the  consideration  that  the  question 
may  be  determined  by  the  Judges."  This  Act  passed  in  the 
House  of  Representatives  by  a  majority  of  five  or  six. 

"  We  could  show,  if  it  were  proper,  that  more  than  six  members 
voted  for  it  because  the  unconstitutionality  of  it  was  doubtful ; 
leaving  it  to  this  court  to  determine  the  question.  If  the  legislature 
is  to  pass  a  law  because  its  unconstitutionality  is  doubtful,  and  the 
judge  is  to  hold  it  valid  because  its  unconstitutionality  is  doubtful, 
in  what  a  predicament  is  the  citizen  placed!  The  legislature  pass  it 
de  bene  esse;  if  the  question  is  not  met  and  decided  here  on  prin- 
ciple, responsibility  rests  nowhere.  ...  It  is  the  privilege  of  an 
American  judge  to  decide  on  constitutional  questions.  .  .  .  Judicial 
tribunals  are  the  only  ones  suitable  for  the  investigation  of  diffi- 
cult questions  of  private  right." 

But  the  court  did  not  yield  to  this  ingenious  attempt  to 
turn  them  into  a  board  for  answering  legislative  conun- 
drums. Instead  of  deviating  from  the  line  of  their  duty 
for  the  purpose  of  correcting  errors  of  the  legislature,  they 
held  that  body  to  its  own  duty  and  its  own  responsibility. 
*•  Such  a  declaration,"  said  Mr.  Justice  Wilde  in  giving  his 
opinion,  "  should  never  be  made  but  when  the  case  is 
clear  and  manifest  to  all  intelligent  minds.  We  must 
assume  that  the  legislature  have  done  their  duty,  and  we 
must  respect  their  constitutional  rights  and  powers."  Five 
years  later,  Lemuel  Shaw,  who  was  Webster's  associate 
counsel  in  the  case  last  mentioned,  being  now  Chief  Justice 
of  Massachusetts,  in  a  case^   where  Jeremiah  Mason  was 

1  Vfelllngton  et  al..  Petitioners.  16  Pick.  87. 


CONSTITUTIONAL  LAW  25 

one  of  the  counsel,  repeated  with  much  emphasis  "  what 
has  been  so  often  suggested  by  courts  of  justice,  that  .  .  . 
courts  will  .  .  .  never  declare  a  statute  void  unless  the 
nullity  and  invalidity  are  placed  beyond  reasonable  doubt." 
A  rule  thus  powerfully  attacked  and  thus  explicitly 
maintained,  must  be  treatea  as  having  been  deliberately 
meant,  both  as  regards  its  substance  and  its  form.  As  to 
the  form  of  it,  it  is  the  more  calculated  to  strike  the  atten- 
tion because  it  marks  a  familiar  and  important  discrimina- 
tion, of  daily  application  in  our  courts,  in  situations  where 
the  rights,  the  actions,  and  the  authority  of  different 
departments,  different  officials,  and  different  individuals 
have  to  be  harmonized.  It  is  a  distinction  and  a  test,  it 
may  be  added,  that  come  into  more  and  more  prominence 
as  our  jurisprudence  grows  more  intricate  and  refined.  In 
one  application  of  it,  as  we  all  know,  it  is  constantly 
resorted  to  in  the  criminal  law  in  questions  of  self-defence, 
and  in  the  civil  law  of  tort  in  questions  of  negligence,  — 
in  answering  the  question  what  might  an  individual  who 
has  a  right  and  perhaps  a  duty  of  acting  under  given  cir- 
cumstances, reasonably  have  supposed  at  that  time  to  be 
true?  It  is  the  discrimination  laid  down  for  settling  that 
difficult  question  of  a  soldier's  responsibility  to  the  ordinary 
law  of  the  land  when  he  has  acted  under  the  orders  of  his 
military  superior.  "  He  may,"  says  Dicey,  in  his  "  Law  of 
the  Constitution,"  ^  "  as  it  has  been  well  said,  be  liable 
to  be  shot  by  a  court-martial  if  he  disobeys  an  order,  and 
to  be  hanged  by  a  judge  and  jury  if  he  obeys  it.  .  .  .  Prob- 
ably," he  goes  on,  quoting  with  approval  one  of  the  books  of 
Mr.  Justice  Stephen,  "...  it  would  be  found  that  the 
order  of  a  military  superior  would  justify  his  inferiors  in 
executing  any  orders  for  giving  which  the}^  might  fairly 
suppose  their  superior  officer  to  have  good  reasons.  .  .  . 
The  only  line  that  presents  itself  to  my  mind  is  that  a 
soldier  should  be  protected  by  orders  for  which  he  might 

'  3d  ed.,  279-281. 


26  LEGAL  ESSAYS 

reasonably  believe  his  officer  to  have  good  grounds."  ^ 
This  is  tlie  distinction  adverted  to  by  Lord  Blackburn  in 
a  leading  modern  case  in  the  law  of  libel.^  "  When  the 
court/'  he  said,  "  come  to  decide  whether  a  particular  set 
of  words  .  .  .  are  or  are  not  libellous,  they  have  to  decide 
a  very  different  question  from  that  which  they  have  to  decide 
when  determining  whether  another  tribunal  .  .  .  might, 
not  unreasonably,  hold  such  words  to  be  libellous."  It  is 
the  same  discrimination  upon  which  the  verdicts  of  juries 
are  revised  every  day  in  the  courts,  as  in  a  famous  case 
where  Lord  Esher  applied  it  a  few  years  ago,  when  refus- 
ing to  set  aside  a  verdict.^  It  must  appear,  he  said,  "  that 
reasonable  men  could  not  fairly  find  as  the  jury  have  done. 
...  It  has  been  said,  indeed,  that  the  difference  between 
(this)  rule  and  the  question  whether  the  judges  would  have 
decided  the  same  way  as  the  jury,  is  evanescent,  and  the 
solution  of  both  depends  on  the  opinion  of  the  judges.  The 
last  part  of  the  observation  is  true,  but  the  mode  in  which 
the  subject  is  approached  makes  the  greatest  difference. 
To  ask  '  Should  we  have  found  the  same  verdict,'  is  surely 
not  the  same  thing  as  to  ask  whether  there  is  room  for  a 
reasonable  difference  of  opinion."  In  like  manner,  as  re- 
gards legislative  action,  there  is  often  that  ultimate  ques- 
tion, which  was  vindicated  for  the  judges  in  a  recent  highly 
important  case  in  the  Supreme  Court  of  the  United  States,^ 
viz.,  that  of  the  reasonableness  of  a  legislature's  exercise 
of  its  most  undoubted  powers;  of  the  permissible  limit  of 
those  powers.    If  a  legislature  undertakes  to  exert  the  taxing 

>  It  was  so  held  in  Riggs  v.  State,  3  Cold.  85  (Tenn..  1866),  and 
United  States  v.  Clark,  31  Fed.  Rep.  710  (U.  S.  Circ.  Ct,  E.  Dlst. 
Michigan,  1887,  Brown,  J.).  I  am  indebted  for  these  cases  to  Professor 
Beale's  valuable  collection  of  Cases  on  Criminal  Law  (Cambridge,  1893). 
The  same  doctrine  is  laid  down  by  Judge  Hare  in  2  Hare,  Am.  Const. 
Law.  920. 

-  Cap.  &  Count.  Bank  v.  Henty,  7  App.  Cas.,  p.  776. 

'  Belt  V.  Lawes,  Thayer's  Cas.  Ev.,  2d  ed.,  163,  n. 

*  Chic.  &c.  Ry.  Co.  v.  Minnesota,  134  U.  S.  418.  The  question  was 
whether  a  statute  providing  for  a  commission  to  regulate  railroad 
charges,  which  excluded  the  parties  from  access  to  the  courts  for  an 
ultimate  judicial  revision  of  the  action  of  the  commission,  was  con- 
stitutional. 


CONSTITUTIONAL  LAW  27 

power,  that  of  eminent  domain,  or  any  part  of  that  vast, 
unclassified  residue  of  legislative  authority  which  is  called, 
not  always  intelligently,  the  police  power,i  ^j^is  action 
must  not  degenerate  into  an  irrational  excess,  so  as  to 
become,  in  reality,  something  different  and  forbidden,  — 
e.  g.,  the  depriving  people  of  their  property  without  due 
process  of  law;  and  whether  it  does  so  or  not,  must  be 
determined  by  the  judges.^  But  in  such  cases  it  is  always 
to  be  remembered  that  the  judicial  question  is  a  secondary 
one.  The  legislature  in  determining  what  shall  be  done, 
what  it  is  reasonable  to  do,  does  not  divide  its  duty  with  the 
judges,  nor  must  it  conform  to  their  conception  of  what  is 
prudent  or  reasonable  legislation.^  The  judicial  function 
is  merely  that  of  fixing  the  outside  border  of  reasonable 
legislative  action,  the  boundary  beyond  which  the  taxing 
power,  the  power  of  eminent  domain,  police  power,  and 
legislative  power  in  general,  cannot  go  without  violating 
the  prohibitions  of  the  constitution  or  crossing  the  line  of 
its  grants.'* 

•  ["  Discussions  of  what  is  called  the  '  police  power  '  are  often  unln- 
structive,  from  a  lack  of  discrimination.  It  is  common  to  recognize  that 
the  subject  is  hardly  susceptible  of  definition,  but  very  often,  indeed. 
It  is  not  perceived  that  the  real  question  in  hand  is  that  grave,  difficult, 
and  fundamental  matter,  —  what  are  the  limits  of  legislative  power  in 
general  ?  In  talking  of  the  '  police  power,'  sometimes  the  question  re- 
lates to  the  limits  of  a  power  admitted  and  fairly  well-known,  as  that 
of  taxation  or  eminent  domain  ;  sometimes  to  the  line  between  the  local 
legislative  power  of  the  States  and  the  Federal  legislative  power ;  some- 
times to  legislation  as  settling  the  details  of  municipal  affairs,  and 
local  arrangements  for  the  pi'omotion  of  good  order,  health,  comfort, 
and  convenience ;  sometimes  to  that  special  form  of  legislative  action 
which  applies  the  maxim  of  Sic  utere  tuo  ut  aliennm  non  Iwdas,  ad- 
justs and  accommodates  interests  that  may  conflict,  and  fixes  specific 
limits  for  each.  But  often,  the  discussion  turns  upon  the  true  limits 
and  scope  of  legislative  power  in  general.  —  in  whatever  way  it  may 
seek  to  promote  the  general  welfare."     1  Thayer's  Const.  Cas.  693,  n.] 

^  Compare  Thayer's  Preliminary  Treatise  on  Evidence,  208,  209. 
'   [Cf.  People  V.  Smith,  21  N.  Y.  59.5,  599.] 

*  There  is  often  a  lack  of  discrimination  in  judicial  utterances  on 
this  subject,  —  as  if  it  were  supposed  that  the  legislature  had  to  con- 
form to  the  judge's  opinion  of  reasonableness  In  some  other  sense  than 
that  indicated  above.  The  true  view  is  indicated  by  .Tudge  Cooley  In  his 
Principles  of  Const.  Law,  2d  ed.,  57,  when  he  says  of  a  particular  ques- 
tion :  "  Primarily  the  detei'talnatlon  of  what  is  a  public  purpose  belongs 
to  the  legislature,  and  its  action  is  subject  to  no  review  or  restraint 
so  long  as  it  is  not  manifestly  colorable.  All  cases  of  doubt  must  be 
solved   in  favor  of  the  validity  of  legislative  action,   for  the  obvious 


28  LEGAL   ESSAYS 

It  must  indeed  be  studiously  remembered,  in  judicially 
applying  such  a  test  as  this  of  what  a  legislature  may 
reasonably  think,  that  virtue,  sense,  and  competent  knowl- 
edge are  always  to  be  attributed  to  that  body.  The  con- 
duct of  public  affairs  must  always  go  forward  upon  con- 
ventions and  assumptions  of  that  sort.  "  It  is  a  postulate," 
said  Mr.  Justice  Gibson,  "  in  the  theory  of  our  government 
.  .  .  that  the  people  are  wise,  virtuous,  and  competent  to 
manage  their  own  affairs."  ^  "  It  would  be  indecent  in 
the  extreme,"  said  Marshall,  C.  J.,^  "  upon  a  private  con- 
tract between  two  individuals  to  enter  into  an  inquiry 
respecting  the  corruption  of  the  sovereign  power  of  a 
State."  And  so  in  a  court's  revision  of  legislative  acts,  as 
in  its  revision  of  a  jury's  acts,  it  will  always  assume  a  duly 
instructed  body ;  and  the  question  is  not  merely  what  per- 
sons may  rationally  do  who  are  such  as  we  often  see,  in 
point  of  fact,  in  our  legislative  bodies,  persons  untaught 
it  may  be,  indocile,  thoughtless,  reckless,  incompetent,  — 
but  what  those  other  persons,  competent,  well-instructed, 
sagacious,  attentive,  intent  only  on  public  ends,  fit  to 
represent  a  self-governing  people,  such  as  our  theory  of 
government  assumes  to  be  carrying  on  our  public  affairs, 
—  what  such  persons  may  reasonably  think  or  do,  what 
is  the  permissible  view  for  them.  If,  for  example,  what 
is  presented  to  the  court  be  a  question  as  to  the  constitu- 
tionality of  an  Act  alleged  to  be  ex  post  facto,  there  can 

reason  that  the  question  is  leprislative,  and  only  becomes  judicial  when 
there  Is  a  plain  excess  of  legislative  authority.  A  court  can  only  arrest 
the  proceedings  and  declare  a  levy  void  when  the  absence  of  public 
interest  in  the  purpose  for  which  the  funds  are  to  be  raised  is  so  clear 
and  palpable  as  to  be  perceptible  to  any  mind  at  first  blush."  And 
again,  on  another  question,  by  the  Supreme  Court  of  the  United  States, 
Walte,  C.  J.,  in  Terry  v.  Anderson,  95  U.  S.,  p.  633 :  "  In  all  such  cases 
the  question  is  one  of  reasonableness,  and  we  have  therefore  only  to 
consider  whether  the  time  allowed  In  this  Statute  (of  Limitations)  Is, 
under  all  the  circumstances,  reasonable.  Of  that  the  legislature  is 
primarily  the  judge ;  and  we  cannot  overrule  the  decision  of  that  de- 
partment of  the  government,  unless  a  palpable  error  has  been  com- 
mitted." See  Pickering  Phlpps  v.  Ry.  Co.,  66  Law  Times  Rep.  721 
(1892),  and  a  valuable  opinion  by  Ladd,  :T.,  in  Perry  v.  Keene,  5G 
N.  H.  514  (1876).  [See  also  Com.  v.  Perry,  155  Mass.  117,  124; 
Sharpe  v.  Wakefield,  [18911,  A.  C.  173,  179.] 

•  Eakln  v.  Raub,  12  S.  &  R.,  p.  355. 

'  Fletcher  v.  Peck,  6  Cranch.  p.  131. 


CONSTITUTIONAL  LAW  29 

be  no  assumption  of  ignorance,  however  probable,  as  to 
anything  involved  in  a  learned  or  competent  discussion 
of  that  subject.  And  so  of  the  provisions  about  double 
jeopardy,  or  giving  evidence  against  one's  self,  or  attainder, 
or  jury  trial.  The  reasonable  doubt,  then,  of  which  our 
judges  speak  is  that  reasonable  doubt  which  lingers  in  the 
mind  of  a  competent  and  duly  instructed  person  who  has 
carefully  applied  his  faculties  to  the  question.  The  ration- 
ally permissible  opinion  of  which  we  have  been  talking  is 
the  opinion  reasonably  allowable  to  such  a  person  as  this. 

The  ground  on  which  courts  lay  down  this  test  of  a 
reasonable  doubt  for  juries  in  criminal  cases,  is  the  great 
gravity  of  affecting  a  man  with  crime.  The  reason  that 
they  lay  it  down  for  themselves  in  reviewing  the  civil  ver- 
dict of  a  jury  is  a  different  one,  namely,  because  they  are 
revising  the  work  of  another  department  charged  with  a 
duty  of  its  own,  —  having  themselves  no  right  to  under- 
take that  duty,  no  right  at  all  in  the  matter  except  to  hold 
the  other  department  within  the  limit  of  a  reasonable  inter- 
pretation and  exercise  of  its  powers.  The  court  must  not, 
even  negatively,  undertake  to  pass  upon  the  facts  in  jury 
cases.  The  reason  that  the  same  rule  is  laid  down  in 
regard  to  revising  legislative  acts  is  neither  the  one  of 
these  nor  the  other  alone,  but  it  is  both.  The  courts  are 
revising  the  work  of  a  co-ordinate  department,  and  must 
not,  even  negatively,  undertake  to  legislate.  And,  again, 
they  must  not  act  unless  the  case  is  very  clear,  because 
the  consequences  of  setting  aside  legislation  may  be  so 
serious. 

If  it  be  said  that  the  case  of  declaring  legislation  invalid 
is  different  from  the  others  because  the  ultimate  question 
here  is  one  of  the  construction  of  a  writing;  that  this 
sort  of  question  is  always  a  court's  question,  and  that  it 
cannot  well  be  admitted  that  there  should  be  two  legal 
constructions  of  the  same  instrument ;  that  there  is  a  right 
way  and  a  wrong  way  of  construing  it,  and  only  one  right 
wav;   and  that  it  is  ultimately  for  the  court  to  sav  what 


30  LEGAL  ESSAYS 

the  right  way  is,  —  this  suggestion  appears,  at  first  sight, 
to  have  much  force.  But  really  it  begs  the  question.  Lord 
Blackburn's  opinion  in  the  libel  case  ^  related  to  the  con- 
struction of  a  writing.  The  doctrine  which  we  are  now 
considering  is  this,  that  in  dealing  with  the  legislative 
action  of  a  co-ordinate  department,  a  court  cannot  always, 
and  for  the  purpose  of  all  sorts  of  questions,  say  that  there 
is  but  one  right  and  permissible  way  of  construing  the  con- 
stitution. When  a  court  is  interpreting  a  writing  merely 
to  ascertain  or  apply  its  true  meaning,  then,  indeed,  there 
is  but  one  meaning  allowable;  namely,  what  the  court 
adjudges  to  be  its  true  meaning.  But  when  the  ultimate 
question  is  not  that,  but  whether  certain  acts  of  another 
department,  officer,  or  individual  are  legal  or  permissible, 
then  this  is  not  true.  In  the  class  of  cases  which  we  have 
been  considering,  the  ultimate  question  is  not  what  is  the 
true  meaning  of  the  constitution,  hut  whether  legislation 
is  sustainable  or  not? 

It  may  be  suggested  that  this  is  not  the  way  in  which 
the  judges  in  fact  put  the  matter ;   e.  g.,  that  Marshall, 

1  Cap.  &  Count.  Bank  v.  Henty,  7  App.  Cas.  741. 

*  ["It  is  fortunate  for  the  country  and  for  the  future  of  our  sys- 
tem of  constitutional  law  that  the  Supreme  Court  has  recognized  the 
essentially  political  nature  of  the  questions  with  which  the  General 
Government  has  had  to  deal  in  legislating  for  our  new  possessions. 
But  it  is  also  matter  for  regret  and  anxiety  that,  in  reaching  its  con- 
clusions, the  court  should  have  had  so  narrow  a  majority.  This  fact, 
and  much  that  is  said  in  these  opinions  [De  Lima  v.  Bidwell,  182  U.  S. 
1  ;  Goetze  v.  U.  S.,  ih.  221  ;  Dooley  v.  U.  S.,  ih.  222  ;  Armstrong  r.  U.  S., 
ib.  243 ;  Downes  v.  Bidwell,  ih.  244  ;  IIuus  v.  New  Yorls,  etc.  Steamship 
Co.,  ib.  392],  may  well  draw  sharp  attention  to  the  vital  and  absolutely 
fundamental  distinction  between  the  legislative  and  the  judicial  question 
in  cases  of  the  class  to  which  these  now  under  consideration  belong. 
Where  our  system  intrusts  a  general  subject  to  the  legislature,  nothing 
but  the  plainest  constitutional  provisions  of  restraint,  and  the  plainest 
errors,  will  justify  a  court  in  disregarding  the  action  of  its  co-ordinate 
legislative  department,  —  no  political  theories  as  to  the  nature  of  our 
system  of  government  will  suffice,  no  party  predilections,  no  fears  as  to 
the  consequences  of  legislative  action.  In  dealing  with  such  questions 
the  judges  are,  indeed,  not  acting  as  statesmen,  but  their  function  neces- 
sarily requires  that  they  take  account  of  the  purposes  of  statesmen  and 
their  duties  ;  for  their  own  question  relates  to  what  may  be  permissible 
to  a  statesman  when  he  is  required  l)y  the  Constitution  to  act.  and,  in 
order  that  he  may  act,  to  interpret  the  Constitution  for  himself ;  it  is 
never,  in  such  cases,  merely  the  dry  question  of  what  the  judges  them- 
selves may  think  that  the  Constitution  means."  The  Insular  Tariff 
Cases,  J.  B.  Thayer,  15  Harv.  Law  Rev.  164.] 


CONSTITUTIONAL  LAW  31 

in  McCulloch  v.  Maryland/  seeks  to  establish  the  court's 
own  opinion  of  the  constitutional  it}'  of  the  legislation  estab- 
lishing the  United  States  Bank.  But  in  recognizing  that 
this  is  very  often  true,  we  must  remember  that  where  the 
court  is_  sustainingan_Act,  and  finds  it  to  he  constitiitjonal^ 
in  its  own  opinion,  it  is  fi.t  that  this  should  be  said,  and 
tliat-snch  n  dprlaratioii-a&  all  that  the  case  calls  for;  it 
disposes  of  the  matter.  But  it  is  not  always  true;  there 
are  many  cases  where  the  judges  sustain  an  Act  because 
they  are  in  doubt  about  it ;  where  they  are  not  giving  their 
own  opinion  that  it  is  constitutional,  but  are  merely  leav- 
ing untouched  a  determination  of  the  legislature;  as  in 
the  case  where  a  Massachusetts  judge  concurred  in  the 
opinion  of  his  brethren  that  a  legislative  Act  was  "  compe- 
tent for  the  legislature  to  pass,  and  was  not  unconstitu- 
tional," "  upon  the  single  ground  that  the  Act  is  not  so 
clearly  unconstitutional,  its  invalidity  so  free  from  reason- 
able doubt,  as  to  make  it  the  duty  of  the  judicial  depart- 
ment, in  view  of  the  vast  interests  involved  in  the  result, 
to  declare  it  void."  ^  The  constant  declaration  of  the 
judges  that  the  question  for  them  is  not  one  of  the  mere 
and  simple  preponderance  of  reasons  for  or  against,  but 
of  what  is  very  plain  and.  clear,  clear  beyond  a  reasonable 
doubt,  —  this  declaration  is  really  a  steady  announcement 
that  their  decisions  in  support  of  the  constitutionality  of 
legislation  do  not,  as  of  course,  import  their  own  opinion 
of  the  true  construction  of  the  constitution,  and  that  the 
strict  meaning  of  their  words,  when  they  hold  an  Act  con- 
stitutional, is  merely  this,  —  not  unconstitutional  beyond 
a  reasonable  doubt.  It  may  be  added  that  a  sufficient 
explanation  is  found  here  of  some  of  the  decisions  which 
have  alarmed  many  people  in  recent  years,  —  as  if  the 
courts  were  turning  out  but  a  broken  reed.^     Many  more 

^  4  Wheat.  316. 

-  Per  Thomas,  J.,  in  the  Opinion  of  Justices,  8  Gray,  p.  21. 

^  "  It  matters  little,"  says  a  depressed,  but  interesting  and  incisive 
writer,  in  commenting,  in  1885,  upon  the  Legal  Tender  decisions  of  the 
Supreme  Court  of  the  United  States,   "  for  the  court  has  fallen,   and 


32  LEGAL  ESSAYS 

such  opinions  are  to  be  expected,  for,  while  legislatures 
are  often  faithless  to  their  trust,  judges  sometimes  have  to 
confess  the  limits  of  their  own  power. 

It  all  comes  back,  I  thinly,  to  this.  The  rule  under 
discussion  has  in  it  an  implied  recognition  that  the  judicial 
duty  now  in  qiiestion  touches  the  region  _of_^litical  ad- 
ministration,  ..and-ia,  nualifipd  Jjjl.  the  ■Beee'iisities  and-pro- 
prieties  of  i^f^pfiiTn'strfltinn^  If  our  doctrine  of  constitutional 
law  —  which  finds  itself,  as  we  have  seen,  in  the  shape  of 
a  narrowly  stated  substantive  principle,  with  a  rule  of 
administration  enlarging  the  otherwise  too  restricted  sub- 
stantive rule  —  admits  now  of  a  juster  and  simpler  concep- 
tion, that  is  a  very  familiar  situation  in  the  development 
of  law.  What  really  took  place  in  adopting  our  theory  of 
constitutional  law  was  this:  we  introduced  for  the  first 
time  into  the  conduct  oi  government  through  its  great 
departments  a  judicial  sanction,  as  among  these  ^epart- 
ments,  —  not  full  and  complete,  but  partial.  The  judges 
were  allowed,  indirectly  and  in  a  degree,  the  power  to 
revise  the  action  of  other  departments  and  to  pronounce  it 
null.  In  simple  truth,  while  this  is  a  mere  judicial  func- 
tion, it  involves,  owing  to  the  subject-matter  with  which  it 
deals,  taking  a  part,  a  secondary,  part,  in  the  political  con- 
duct of  government.  If  that  be  so,  then  the  judges  must 
apply  methods  and  principles  that  befit  their  task.  In 
such  a  work  there  can  be  no  permanent  or  fitting  modus 
Vivendi  between  the  different  departments  unless  each  is 
sure  of  the  full  co-operation  of  the  others,  so  long  as  its 
own  action  conforms  to  any  reasonable  and  fairly  permis- 
sible view  of  its  constitutional  power.  The  ultimate  arbiter 
of  what  is  rational  and  permissible  is  indeed  always  the 
courts,  so  far  as  litigated  cases  bring  the  question  before 
them.     This  leaves  to  our  courts  a  great  and  stately  juris- 


it  is  not  probable  It  can  ever  again  act  as  an  effective  check  upon  the 
popular  will,  or  should  it  attempt  to  do  so,  that  it  can  prevail."  The 
"  Consolidation  of  the  Colonies,"  by  Broolis  Adams,  55  Atlantic  Monthly, 
307. 


CONSTITUTIONAL  LAW  33 

diction.  It  will  only  imperil  the  whole  of  it  if  it  is  sought 
to  give  them  more.  They  must  not  step  into  the  shoes 
of  the  law-maker,  or  be  unmindful  of  the  hint  that  is 
found  in  the  sagacious  remark  of  an  English  bishop  nearly 
two  centuries  ago,  quoted  lately  from  Mr.  Justice 
Holmes  ^ :  — 

"  Whoever  hath  an  absolute  authority  to  interpret  any  written  or 
spoken  laws,  it  is  he  who  is  truly  the  lawgiver,  to  all  intents  and 
purposes,  and  not  the  person  who  first  wrote  or  spoke  them."  2 

V.  Finally,  let  me  briefly  mention  one  or  two  discrimi- 
nations which  are  often  overlooked,  and  which  are  im- 
portant in  order  to  a  clear  understanding  of  the  matter. 
Judges  sometimes  have  occasion  to  express  an  opinion  upon 
the  constitutionality  of  a  statute,  when  the  rule  which  we 
have  been  considering  has  no  application,  or  a  different 
application  from  the  common  one.  There  are  at  least  three 
situations  which  should  be  distinguished:  (1)  where  judges 
pass  upon  the  validity  of  the  acts  of  a  co-ordinate  depart- 
ment; (2)  where  they  act  as  advisers  of  the  other  depart- 
ments; (3)  where,  as  representing  a  government  of 
paramount  authority,  they  deal  with  acts  of  a  department 
which  is  not  co-ordinate. 

(1)  The  case  of  a  court  passing  upon  the  validity  of 
the  act  of  a  co-ordinate  department  is  the  normal  situation, 

'  By  Professor  Gray  in  6  Harv.  Law  Rev.  33,  n.,  where  he  justly 
refers  to  the  remark  as  showing  "  that  gentlemen  of  the  short  robe  have 
sometimes  grasped  fundamental  legal  principles  better  than  many 
lawyers." 

^  Bishop  Iloadly's  Sermon  preached  before  the  King,  March  31, 
1717,  on  "The  Nature  of  the  Kingdom  or  Church  of  Christ."  London: 
James  Knapton,  1717.  It  should  be  remarked  that  Bishop  Hoadly  is 
speaking  of  a  situation  where  the  supposed  legislator,  after  once  issuing 
his  enactment,  never  interposes.  That  is  not  strictly  the  case  in  hand  ; 
yet  we  may  recall  what  Dicey  says  of  amending  the  constitution  of  the 
United  States  :  "  The  sovereign  of  the  United  States  has  been  roused 
to  serious  action  but  once  during  the  course  of  ninety  years.  It  needed 
the  thunder  of  the  Civil  War  to  break  his  repose,  and  it  may  be  doubted 
whether  anything  short  of  impending  revolution  will  ever  again  arouse 
him  to  activity.  But  a  monarch  who  slumbers  for  years  is  like  a 
monarch  who  does  not  exist.  A  federal  constitution  is  capable  of  change, 
but,  for  all  that,  a  federal  constitution  is  apt  to  be  unchangeable." 


34  ■  LEGAL  ESSAYS 

to  which  the  previous  observations  mainly  apply.     I  need 
say  no  more  about  that. 

(2)  As  regards  the  second  case,  the  giving  of  advisory 
opinions,  this,  in  reality,  is^iot  the  exercise  of  the  judicial 
function  atjLll,_andJ;he  opinions  thus  given  have  not  ibe 
quality  of  judicial  authority.^  A  single  exceptional  and 
unsupported  opinion  upon  this  subject,  in  the  State  of 
Maine,  made  at  a  time  of  great  political  excitement,^ 
and  a  doctrine  in  the  State  of  Colorado,  founded  upon 
considerations  peculiar  to  the  constitution  of  that  State,^ 
do  not  call  for  any  qualification  of  the  general  remark, 
that  such  opinions,  given  by  our  judges,  —  like  that  well- 
known  class  of  opinions  given  by  the  judges  in  England 
when  advising  the  House  of  Lords,  which  suggested  our 
own  practice,  —  are  merely  advisory,  and  in  no  sense  au- 
thoritative judgments.'*  Under  our  constitutions  such 
opinions  are  not  generally  given.  In  the  six  or  seven 
States  where  the  constitutions  provide  for  them,  it  is  the 
practice  to  report  these  opinions  among  the  regular  deci- 
sions, much  as  the  responses  of  the  judges  in  Queen  Caro- 
line's Case,  and  in  MacNaghten's  Case,  in  England,  are 

1  Com.  V.  Green,  12  Allen,  p.  163 ;  Taylor  v.  Place,  4  R.  I.,  p.  362. 
See  Thayer's  Memorandum  on  Advisory  Opinions  (Boston,  1885), 
Jameson,  Const.  Conv.,  4th  ed.,  Appendix,  note  e,  p.  667,  and  a  valuable 
article  by  H.  A.  Dubuque,  in  24  Am.  Law  Rev.  369,  on  "  The  Duty  of 
Judges  as  Constitutional  Advisers." 

2  Opinion  of  Justices,  70  Me.,  p.  583  (1880).  Contra,  Kent,  J.,  in 
58  Me.,  p.  573  (1870)  :  "  It  is  true,  unquestionably,  that  the  opinions 
given  under  a  requisition  like  this  have  no  judicial  force,  and  cannot 
bind  or  control  the  action  of  any  officer  of  any  department.  They  have 
never  been  regarded  as  binding  on  the  body  asking  for  them."  And  so 
Tapley,  J.,  ibid.,  p.  615 :  "  Never  regarding  the  opinions  thus  formed 
as  conclusive,  but  open  to  review  upon  every  proper  occasion  " ;  and 
Libby,  J.,  In  72  Me.,  p.  562-3  (1881)  :  "Inasmuch  as  any  opinion  now 
given  can  have  no  effect  if  the  matter  should  be  Judicially  brought  before 
the  court  by  the  proper  process,  and  lest,  in  declining  to  answer,  I 
may  omit  the  performance  of  a  constitutional  duty,  I  will  very  briefly 
express  my  opinion  upon  the  question  submitted."  Walton.  J.,  con- 
curred ;  the  other  judges  said  nothing  on  this  point.  [The  views  criti- 
cised by  Professor  Thayer  have  since  been  overruled  by  the  Supreme 
Court  of  Maine  in  Opinions  of  the  Justices,  95  Me.  564,  566,  573.  In 
this  opinion  the  whole  subject  of  advisory  opinions  Is  exhaustively 
reviewed.] 

^  In  re  Senate  Bill,  12  Colo.  466,  —  an  opinion  which  seems  to  me, 
in  some  respects.  111  considered. 

*  Macqueen's  Pract.  House  of  Lords,  pp.  49,  50. 


CONSTITUTIONAL   LAW  35 

reported,  and  sometimes  cited,  as  if  they  held  equal  rank 
with  true  adjudications.  As  regards  such  opinions,  the 
scruples,  cautions,  and  warnings  of  which  1  have  been 
speaking,  and  the  rule  about  a  reasonable  doubt,  which  we 
have  seen  emphasized  by  the  courts  as  regards  judicial 
decisions  upon  the  constitutionality  of  legislative  Acts, 
have  no  application.  What  is  asked  for  is  the  judge's  own 
opinion. 

(3)  Under  the  third  head  come  the  questions  arising 
out  of  the  existence  of  our  double  system,  with  two  written 
constitutions,  and  two  governments,  one  of  which,  within 
its  sphere,  is  of  higher  authority  than  the  other.  The 
relation  to  the  States  of  the  paramount  government  as  a 
whole,  and  its  duty  in  all  questions  involving  the  powers 
of  the  general  government  to  maintain  that  power  as 
against  the  States  in  its  fulness,  seem  to  fix  also  the  duty 
of  each  of  its  departments;  namely,  that  of  maintaining 
this  paramount  authority  in  its  true  and  just  proportions, 
to  be  determined  by  itself.  If  a  Statelegislature  passes  a 
law  which  is  impeached  in  the  due  course  of  litigation 
before  the  national  courts^  as  hping  in  mnflint  with  the 
supreme  law  of  the  land,  those  courts  may  have  to  ask 
themselves  a  question  different  from  that  which  would  be 
applicable  if  the  enactments  were  those  of  a  co-ordinate 
department.  When  the  question  relates  to  what  is  admitted 
not  to  belong  to  the  national  power,  then  whoever  construes 
a  State  constitution,  whether  the  State  or  national  judici- 
ary, must  allow  to  that  legislature  the  full  range  of  rational 
construction.  But  when  the  question  is  whether  State 
action  be  or  be  not  conformable  to  the  paramount  consti- 
tution, the  supreme  law  of  the  land,  we  have  a  different 
matter  in  hand.  I\mdam£ntally,^it_invo^lyes_tbe  allotnient 
qf_power  between  the  two  governments,  —  where  the  line 
is  to  be  drawn.  True,  the  judiciary  is  still  debating  whether 
a  legislature  has  transgressed  its  Jiimit ;  but  the  depart- 
ments are  not  co-ordinate,  and  the  limit  is  at  a  different 
point.     The  judiciary  now  speaks  as  representing  a  para- 


36  LEGAL  ESSAYS 

mount  constitution  and  government,  whose  duty  it  is,  in 
all  its  departments,  to  allow  to  that  constitution  nothing 
less  than  its  just  and  true  interpretation ;  and  having  fixed 
this,  to  guard  it  against  any  inroads  from  without.^ 

'  [Compare  the  following  observations  by  Professor  Ttiayer  on  the 
regulation  of  interstate  commerce  : 

•'The  subject  (interstate  commerce)  has  unusual  complications.  There 
exist  not  merely  the  common  difficulties  in  constitutional  questions  about 
accommodating  the  just  extent  of  judicial  control  to  that  of  legislative 
power,  —  such  difficulties,  e.  r/.,  as  appear  in  revising  a  legislative  deter- 
mination of  what  are  reasonable  railroad  rates  (Reagan  v.  Farmers  &c. 
Trust  Co.,  154  U.  S.  362  ;  1  Thayer's  Const.  Cas.  ()72)  ;  but  other  embar- 
rassments, also,  arising  out  of  the  necessity  of  adjusting  the  relative 
powers  of  two  legislative  bodies,  the  local  and  the  nntional.  It  is  Con- 
gress and  not  the  courts,  to  whom  is  intrusted  the  regulation  of  that  por- 
tion of  commerce  which  is  interstate,  foreign,  and  with  the  Indian  tribes ; 
and,  primarily,  it  would  appear  to  be  the  office  of  the  Federal  legisla- 
ture, and  not  of  the  Federal  courts,  to  supervise  and  moderate  the 
action  of  the  local  legislatures,  where  it  touches  these  parts  of  commerce. 

"  The  present  state  of  the  decisions  seems  to  invite  one  or  two  more 
suggestions.  The  principal  difficulties  seem  now  to  lie  in  that  region 
of  the  general  subject  as  to  which  it  is  said  that  when  a  matter  admits 
only  of  one  uniform  system  or  plan  of  regulation  the  power  of  Congress 
is  exclusive  ;  and  where  again,  it  is  said  that  when  Congress  is  silent 
this  silence  is,  virtually,  a  regulation,  —  a  declaration  that  the  given 
subject  shall  remain  as  it  is. 

"  Now  the  question  whether  or  not  a  given  subject  admits  of  only 
one  uniform  system  or  plan  of  regulation  is  primarily  a  legislative 
question,  not  a  judicial  one.  For  it  involves  a  consideration  of  what, 
on  practical  grounds.  Is  expedient,  possible,  or  desirable  ;  and  whether, 
being  so  at  one  time  or  place,  it  is  so  at  another  :  as  in  the  cases 
of  quarantine  and  pilotage  laws,  and  laws  regulating  the  bringing  in 
and  sale  of  particular  articles,  such  as  intoxicating  liquors  or  opium. 
As  regards  the  last-named  drug,  the  desirable  rule  for  California,  where 
there  are  many  Chinamen,  and  for  Vermont,  where  they  are  few,  may 
conceivably  be  different.  It  is  not  in  the  language  itself  of  the  clause 
of  the  Constitution  now  in  question,  or  In  any  necessary  construction 
of  it,  that  any  requirement  of  uniformity  is  found,  in  any  case  what- 
ever. That  can  only  be  declared  necessary,  in  any  given  case,  as  being 
tbe  determination  of  some  one's  practical  judgment.  The  question, 
then,  appears  to  be  a  legislative  one  ;  it  Is  for  Congress  and  not  for 
the  courts,  —  except,  indeed,  in  the  sense  that  the  courts  may  control 
a  legislative  decision,  so  far  as  to  keep  It  within  the  bounds  of  reason, 
of  rational  opinion. 

"  If  this  be  so,  then  no  judicial  determination  of  the  question  can 
stand  against  a  reasonable  enactment  of  Congress  to  the  contrary ; 
such,  for  example,  as  was  made  in  the  '  Wilson  Bill  '  (see  Tn  re  Rahrer, 
14(»  IT.  S.  545),  by  which  a  determination  of  the  court  in  Leisy  i;.  Hardin 
was  superseded.  Compare  Pa.  v.  Wheeling,  &c.  Bridge  Co.,  18  Howard, 
421.  It  would  seem  to  follow  that  the  courts  should  abstain  from 
interference,  except  in  cases  so  clear  that  the  legislature  cannot  legit- 
imately supersede  their  determinations ;  for  the  fact  that  the  legislature 
may  do  this,  in  any  given  case,  shows  plainly  that  the  question  Is 
legislative  and  not  judicial. 

"  But  If  It  be  said,  leaving  aside  any  inquiry  as  to  whether  or  not 
a  uniform  rule  is  recjuired,  that  the  courts  have  merely  been  construing 


CONSTITUTIONAL  LAW  37 

I  have  been  speaking  of  the  national  judiciar3^  As  to 
how  the  State  judiciary  should  treat  a  question  of  the  con- 

the  silence  and  non-action  of  Congress  as  being  a  declaration  that 
no  rule  is  required,  and  enforcing  that,  we  do  not  really  escape  from 
the  difficulty  just  mentioned.  As  regards  State  regulations  of  commerce 
in  matters  which  do  not  require  uniformity  of  rule,  it  is  admitted  that 
the  silence  of  Congress  is  not  conclusive  against  them  ;  some  positive 
intervention  of  Congress  is  required  (Cooley  r.  Port  Wardens,  12 
Howard.  299).  If,  then,  the  courts  would  know,  in  any  given  case 
of  a  regulation  of  commerce,  what  the  silence  of  Congress  means,  how 
are  they  to  tell,  unless  they  first  determine  under  which  head  the 
given  regulation  belongs,  that  of  regulations  requiring  a  uniform  rule, 
or  of  those  which  do  not.  But  that,  as  we  have  seen,  they  cannot 
settle  without  passing  on  a  legislative  question,  except  in  cases  so 
clear  that  there  cannot  reasonably  be  two  opinions. 

"  It  may  then  be  conjectured  that  the  decisions  of  the  Federal  courts 
are  likely  to  incline,  as  time  goes  on,  to  the  side  of  leaving  it  to 
Congress  to  check  such  legislation  of  the  States  as  may  be  challenged 
on  the  ground  now  in  question,  and  of  limiting  their  own  action,  in 
respect  to  such  cases,  to  that  class  of  State  enactments  which  is  so 
clearly  unconstitutional  that  no  consent  of  Congress  could  help  the 
matter  out.  An  illustration  of  this  method  may  be  observed  in  the 
case  of  Neilson  c.  Garza,  2  Wood's  Circuit  Court  Reports,  287,  in 
considering  the  question  whether  a  law  of  Texas  was  an  inspection 
law,  and  if  so,  whether  it  transgressed  the  constitutional  limit  in  laying, 
without  the  consent  of  Congress,  a  duty  or  impost  on  imports  or 
exports  beyond  what  was  absolutely  necessary  for  executing  the  inspec- 
tion law.  Mr.  .Justice  Bradley,  after  remarking  that  the  right  to  make 
inspection  laws  is  not  granted  to  Congress  but  is  reserved  to  the  States, 
—  with  this  limitation  as  to  the  means  of  executing  them,  that  duties 
on  imports  or  exports,  not  passed  upon  by  Congress,  must  be  absolutely 
necessary,  —  went  on  to  say,  as  to  who  shall  determine  whether  a  duty 
is  excessive  or  not,  that  the  question  is  for  Congress,  '  the  duty  must 
stand  until  Congress  shall  see  fit  to  alter  it.' 

"  In  like  manner,  accepting  the  approved  principle  of  Cooley  v.  Port 
Wardens,  12  Howard,  299,  that  subjects  of  interstate  and  foreign 
commerce  which  require  one  uniform  rule  are  exclusively  for  Congress, 
it  can  make  no  difference  whether  this  principle  be  stated  in  express 
terms  in  the  Constitution,  like  the  qualification  about  inspection  laws, 
or  be  only  a  just  implication.  To  the  question.  Who  shall  say  whether 
one  uniform  rule  is  required?  as  well  as  to  the  other  question.  Who 
shall  say  whether  the  inspection  duty  is  absolutely  necessary?  the 
answer  is  the  same  :  that  question  is  for  Congress,  and  the  State  regu- 
lation '  must  stand  until  Congress  shall  see  fit  to  alter  it."  And  so 
Mr.  Justice  Curtis,  in  giving  the  court's  opinion  in  Cooley  v.  Port 
Wardens,  12  Howard,  299,  points  to  the  legislative  character  of  the 
question  when  he  says:  'The  Act  of  1789  contains  a  clear  and  au- 
thoritative declaration  by  the  first  Congress  that  the  nature  of  this 
subject   (pilotage)    is  such  that  ...   it  is  local   and  not  national.' 

"  If  it  be  thought  that  Congress  will  very  likely  be  dilatory  or  negli- 
gent, or  that  it  may  even  purposely  allow,  and  connive  at.  what  should 
be  forbidden.  —  that  is  quite  possible.  But  the  objection  is  a  criticism 
upon  the  arrangements  of  the  Constitution  itself,  in  giving  so  much 
power  to  the  legislature  and  so  little  to  the  courts.  It  should  be  ob- 
served, however,  that  the  great  thing  which  the  makers  of  the  Con- 
stitution had  in  view,  as  to  this  subject,  was  to  secure  power  and 
control  to  a  single  hand,  the  general  government,  the  common  repre- 
sentative of  all,  instead  of  leaving  it  divided  and  scattered  among  the 


38  LEGAL  ESSAYS 

formity  of  an  Act  of  their  own  legislature  to  the  paramount 
constitution,  it  has  been  plausibly  said  that  they  should  be 
governed  by  the  same  rule  that  the  Federal  courts  would 
apply.  Since  an  appeal  lies  to  the  Federal  courts,  these 
two  tribunals,  it  has  been  said,  should  proceed  on  the 
same  rule,  as  being  parts  of  one  system.  But  under  the 
Judiciary  Act  an  appeal  does  not  lie  from  every  decision; 
it  only  lies  when  the  State  law  is  sustained  below.  It  would 
perhaps  be  sound  on  general  principles,  even  if  an  appeal 
were  allowed  in  all  cases,  here  also  to  adhere  to  the  general 
rule  that  judges  should  follow  any  permissible  view  which 
the  co-ordinate  legislature  has  adopted.  At  any  rate,  under 
existing  legislation  it  seems  proper  in  the  State  court  to 
do  this,  for  the  practical  reason  that  this  is  necessary  in 
order  to  preserve  the  right  of  appeal.^ 

The  view  which  has  thus  been  presented  seems  to  me 
highly  important.  I  am  not  stating  a  new  doctrine,  but 
attempting  to  restate  more  exactly  and  truly  an  admitted 
one.  If  what  I  have  said  be  sound,  it  is  greatly  to  be  de- 
sired that  it  should  be  more  emphasized  by  our  courts,  in 
its  full  significance.  It  has  been  often  remarked  that  pri- 
vate rights  are  more  respected  by  the  legislatures  of  some 
countries  which  have  no  written  constitution,  than  by  ours. 
No  doubt  our  doctrine  of  constitutional  law  has  had  a 
tendency  to  drive  out  questions  of  justice  and  right,  and  to 
fill  the  mind  of  legislators  with  thoughts  of  mere  legality, 

states :  and  that  this  object  Is  clearly  accomplished.  It  is  also  to  be 
remembered  that  much  In  State  action,  which  may  not  be  reached  by 
the  courts  under  the  present  head,  may  yet  be  controlled  by  them 
under  other  parts  of  the  Constitution,  as  in  such  cases  as  Crandall 
V.  Nevada,  6  Wall.  35,  and  Corfleld  v.  Coryell.  4  Wash.  C.  C.  .371."  (2 
Thayer's  Const.  Cas.  2190,  n.)l 

1  Gibson,  J.,  in  Eakin  v.  Raub,  12  S.  &  R.,  p.  357.  Compare  lb.. 
p.  352.  The  same  result  is  reached  by  the  court,  on  general  principles, 
in  The  Tonnage  Tax  Cases,  62  Pa.  St.  286  :  "  A  case  of  simple  doubt 
should  be  resolved  favorably  to  the  State  law,  leaving  the  correction 
of  the  error,  if  it  l)e  one,  to  the  Federal  judiciary.  The  presumption  in 
favor  of  a  co-ordinate  branch  of  the  State  government,  the  relation 
of  her  courts  to  the  State,  and,  above  all,  the  necessity  of  preserving 
a  financial  system  so  vital  to  her  welfare,  demand  this  at  our  hands  " 
(Agnew,  .!.,  for  the  court).  [See  also  Livingston  v.  Van  Ingen,  9  .Johns. 
507,  572.] 


CONSTITUTIONAL  LAW  39 

of  what  the  constitution  allows.  And  moreover,  even  in 
the  matter  of  legality,  they  have  felt  little  responsibility; 
if  we  are  _M.Tr>^gj  ^hpy  say,  the  courts  will  correct  it.^ 
Meantime  they  and  the  people  whom  they  represent,  not 
being  thrown  back  on  themselves,  on  the  responsible  exer- 
cise of  their  own  prudence,  moral  sense,  and  honor,  lose 
much  of  what  is  best  in  the  political  experience  of  any 
nation;  and  they  are  belittled,  as  well  as  demoralized. 
If  what  I  have  been  saying  is  true,  the  safe  and  per- 
manent road  towards  reform  is  that  of  impressing  upon 
our  people  a  far  stronger  sense  than  they  have  of  the 
great  range  of  possible  mischief  that  our  system  leaves 
open,  and  must  leave  open,  to  the  legislatures,  and  of  the 
clear  limits  of  judicial  power;  so  that  responsibility  may 
be  brought  sharply  home  where  it  belongs.  The  checking 
andj3utting  down  of  legislative  power,  by  numerous  detailed 
prohibitions  in  the  constitution,  cannot  De  accomplishecl 
without  making  the  g^overnment  petty  and  incompetent. 
This  process  has  already  b^en  carried  much  too  far  in 
some  of  our  States.  TTnd*^^  ^^^  system  can  the  power 
of  courts  gO_Jar_  t"  sava_a_ppnp1e,  frnm  rnin  ;  our  chief 
_piQtect.iQiL,Ji£S— elsewhere.  If  this  be  true,  it  is  of  the 
greatest  public  importance  to  put  the  matter  in  its  true 
light.2 

'  "  A  singular  result  of  the  importance  of  constitutionai  interpre- 
tation in  tlie  American  sovernment  ...  is  tliis,  tliat  ttie  United  States 
legislature  lias  been  very  largely  occupied  in  purely  legal  discussions. 
...  Legal  issues  are  apt  to  dwarf  and  obscure  the  more  substantially 
important  issues  of  principle  and  policy,  distracting  from  these  latter 
the  attention  of  the  nation  as  well  as  the  skill  of  congressional  de- 
baters." —  1  Bryce,  Am.  Com.,  1st  ed.,  377.  On  page  378  he  cites  one 
of  the  best-known  writers  on  constitutional  law,  .Judge  Hare,  as  saying 
that  "  In  the  refined  and  subtle  discussion  which  ensues,  right  is  too 
often  lost  sight  of,  or  treated  as  if  it  were  synonymous  with  might. 
It  is  taken  for  granted  that  what  the  constitution  permits  it  also 
approves,  and  that  measures  which  are  legal  cannot  be  contrary  to 
morals."     See  also  76.,  410. 

='  La  volonte  populaire :  tel  est,  dans  les  pays  libres  de  I'ancien  et 
du  Nouveau  Monde,  la  source  et  la  fin  de  tout  pouvoir.  Tant  qu'elle  est 
saine,  les  nations  prospferent  malgr^  les  imperfections  et  les  lacunes 
de  leurs  Institutions ;  si  le  bon  sens  fait  defaut,  si  les  passions 
I'emportent,  les  constitutions  les  plus  parfaites,  les  lois  les  plus  sages, 
sont  impuissantes.  La  maxime  d'un  ancien  :  quid  leges  sine  moribusf 
est,   en  somme,   le  dernier   mot  de   la   science   politique.  —  Le  Systdme 


40  LEGAL   ESSAYS 

Judlciaire  de  la  Grande  Bretaqne,  by  le  Comte  de  Franqueville.  i.  25 
(Paris:    J.  Rothschild,  1893). 

[See  also  The  Federalist  (Lodge's  ed.),  153;  1  Story  on  the  Con- 
stitution (5th  ed.),  s.  533,  note  a  (Gouverneur  Morris)  :  Roberts  v. 
Boston.  5  Cush.  198,  206.  207  (Shaw,  C.  J.)  ;  Ilurtado  v.  California, 
110  U.  S.  516,  535  (Matthews,  .1.). 

"  The  people  of  the  States,  when  making  new  constitutions,  have 
long  been  adding  more  and  more  prohibitions  and  restraints  upon  their 
legislatures.  The  courts,  meantime,  in  many  places,  enter  into  the 
harvest  thus  provided  for  them  with  a  light  heart,  and  too  promptly 
and  easily  proceed  to  set  aside  legislative  acts.  The  legislatures  are 
growing  accustomed  to  this  distrust,  and  more  and  more  readily  incline 
to  justify  it,  and  to  shed  the  consideration  of  constitutional  restraints, 
—  certainly  as  concerning  the  exact  extent  of  these  restrictions,  — 
turning  that  sub.iect  over  to  the  courts  ;  and,  what  is  worse,  they  in- 
sensibly fall  into  a  habit  of  assuming  that  whatever  they  can  consti- 
tutionally do  they  may  do,  —  as  if  honor  and  fair  dealing  and  common 
honesty  were  not  relevant  to  their  inquiries. 

"  The  people,  all  this  while,  become  careless  as  to  whom  they  send 
to  the  legislature  :  too  often  they  cheerfully  vote  for  men  whom  they 
would  not  trust  with  an  important  private  affair,  and  when  these  unfit 
persons  are  found  to  pass  foolish  and  bad  laws,  and  the  courts  step 
in  and  disregard  them,  the  people  are  glad  that  these  few  wiser  gentle- 
men on  the  bench  are  so  ready  to  protect  them  against  their  more 
immediate  representatives. 

"  Prom  these  causes  there  has  developed  a  vast  and  growing  increase 
of  judicial  interference  with  legislation.  This  is  a  very  different  state 
of  things  from  what  our  fathers  contemplated,  a  century  and  more  ago, 
in  framing  the  new  system.  Seldom,  indeed,  as  they  imagined,  under 
our  system,  would  this  great,  novel,  tremendous  power  of  the  courts 
be  exerted,  —  would  this  sacred  ark  of  the  covenant  be  taken  from 
within  the  veil.  Marshall  himself  expressed  truly  one  aspect  of  the 
matter,  when  he  said  in  one  of  the  later  years  of  his  life  :  '  No  questions 
can  be  brought  before  a  judicial  tribunal  of  greater  delicacy  than  those 
which  involve  the  constitutionality  of  legislative  acts.  If  they  become 
indispensably  necessary  to  the  case,  the  court  must  meet  and  decide 
them  :  but  if  the  case  may  be  determined  on  other  grounds,  a  just  respect 
for  the  legislature  requires  that  the  obligation  of  its  laws  should  not 
be  unnecessarily  and  wantonly  assailed.'  And  again,  a  little  earlier 
than  this,  he  laid  down  the  one  true  rule  of  duty  for  the  courts.  When 
he  went  to  Philadelphia  at  the  end  of  September,  in  1831,  on  that  pain- 
ful errand  of  which  I  have  spiken,  in  answering  a  cordial  tribute  from 
the  bar  of  that  city  he  remarked  that  if  he  might  be  permitted  to  claim 
for  himself  and  his  associates  any  part  of  the  kind  things  they  had 
said,  it  would  be  this,  that  they  had  '  never  sought  to  enlarge  the 
judicial  power  beyond  its  proper  bounds,  nor  feared  to  carry  it  to 
the  fullest  extent  that  duty  required.' 

•'That  is  the  safe  twofold  rule;  nor  is  the  first  part  of  it  any  whit 
less  important  than  the  second  ;  nay,  more  :  to-day  it  is  the  part  which 
most  requires  to  be  emphasized.  For  just  here  comes  in  a  consideration 
of  very  great  weight,  (ireat  and,  indeed,  inestimable  as  are  tlie  advan- 
tages in  a  popular  government  of  this  conservative  iiifbiiiice. — ^  the 
power  of  the  judiciary  to  disregard  unconstitutional  liL;is!:ition.  —  it 
sliould  be  remembered  that  the  exercise  of  it,  even  when  unavoidable, 
is  always  attended  with  a  serious  evil,  namely,  that  the  correction  of 
legislative  mistakes  comes  from  the  outside,  and  the  people  thus  lose 
the  political  •■xi)(Mi(>nce,  and  the  moral  education  mikI  stiiimliis  that 
come  from  lighting;  tlie  question  out  in  the  ordinary  way.  and  conecting 
their  own  errors.  If  the  decision  in  Munn  v.  Illinois  and  the  '  Granger 
Cases,'  twenty-five  years  ago,  and  In  the  '  TjCgal  Tender  Cases,'  nearly 


CONSTITUTIONAL  LAW.  41 

thirty  years  ago,  had  been  different ;  and  the  legislation  there  in 
question,  thougiit  by  many  to  be  unconstitutional  and  by  many  more 
to  be  ill-advised,  had  been  set  aside,  we  should  have  been  saved  some 
trouble  and  some  harm.  But  I  venture  to  think  that  the  good  which 
came  to  the  country  and  its  people  from  the  vigorous  thinking  that  had 
to  be  done  in  the  political  debates  that  followed,  from  the  infiltration 
through  every  part  of  the  population  of  sound  ideas  and  sentiments, 
from  the  rousing  into  activity  of  opposite  elements,  the  enlargement 
of  ideas,  the  strengthening  of  moral  fibre,  and  the  growth  of  political 
experience  that  came  out  of  it  all,  —  that  all  this  far  more  than  out- 
weighed any  evil  which  ever  flowed  from  the  refusal  of  the  court  to 
interfere  with  the  work  of  the  legislature. 

"  The  tendency  of  a  common  and  easy  resort  to  this  great  function, 
now  lamentably  too  common,  is  to  dwarf  the  political  capacity  of  the 
people,  and  to  deaden  its  sense  of  moral  responsibility.  It  is  no  light 
thing  to  do  that. 

"  What  can  be  done?  It  is  the  courts  that  can  do  most  to  cure  the 
evil  ;  and  the  opportunity  is  a  very  great  one.  Let  them  resolutely 
adhere  to  first  principles.  Let  them  consider  how  narrow  is  the  func- 
tion which  the  constitutions  have  conferred  on  them,  —  the  ofHce  merely 
of  deciding  litigated  cases  :  how  large,  therefore,  is  the  duty  intrusted 
to  others,  and  above  all  to  the  legislature.  It  is  that  body  which  is 
charged,  primarily,  with  the  duty  of  judging  of  the  constitutionality 
of  its  work.  The  constitutions  generally  give  them  no  authority  to 
call  upon  a  court  for  advice  ;  they  must  decide  for  themselves,  and  the 
courts  may  never  be  able  to  say  a  word.  Such  a  body,  charged,  in  every 
State,  with  almost  all  the  legislative  power  of  the  people,  is  entitled 
to  the  most  entire  and  real  respect :  is  entitled,  as  among  all  rationally 
permissible  opinions  as  to  what  the  constitution  allows,  to  its  own 
choice.  Courts,  as  has  often  been  said,  are  not  to  think  of  the  legis- 
lators, but  of  the  legislature,  —  the  great,  continuous  body  itself, 
abstracted  from  all  the  transitory  individuals  who  may  happen  to  hold 
its  power.  It  is  this  majestic  representative  of  the  people  whose  action 
is  in  question,  a  co-ordinate  department  of  the  government,  charged 
with  the  greatest  functions,  and  invested,  in  contemplation  of  law, 
with  whatsoever  wisdom,  virtue,  and  knowledge  the  exercise  of  such 
functions  requires. 

"  To  set  aside  the  acts  of  such  a  body,  representing  in  its  own  field, 
which  is  the  very  highest  of  all,  the  ultimate  sovereign,  should  be 
a  solemn,  unusual,  and  painful  act.  Something  is  wrong  when  it  can 
ever  be  other  than  that.  And  if  it  be  true  that  the  holders  of  legis- 
lative power  are  careless  or  evil,  yet  the  constitutional  duty  of  the 
court  remains  untouched ;  it  cannot  rightly  attempt  to  protect  the 
people,  by  undertaking  a  function  not  its  own.  On  the  other  hand, 
by  adhering  rigidly  to  its  own  duty,  the  court  will  help,  as  nothing  else 
can.  to  fix  the  spot  where  responsibility  lies,  and  to  bring  down  on  that 
precise  locality  the  thunderbolt  of  popular  condemnation.  The  judiciary, 
to-day,  in  dealing  with  the  acts  of  their  co-ordinate  legislators,  owe  to 
the  country  no  greater  or  clearer  duty  than  that  of  keeping  their  hands 
off  these  acts  wherever  it  is  possible  to  do  it.  For  that  course  —  the 
true  course  of  judicial  duty  always  — will  powerfully  help  to  bring 
the  people  and  their  representatives  to  a  sense  of  their  own  responsi- 
bility. There  will  still  remain  to  the  judiciary  an  ample  field  for  the 
determinations  of  this  remarkable  jurisdiction,  of  which  our  American 
law  has  so  much  reason  to  be  proud  ;  a  jurisdiction  which  has  had  some 
of  its  chief  illustrations  and  its  greatest  triumphs,  as  in  Marshall's 
time,  so  in  ours,  while  the  courts  were  refusing  to  exercise  it."  Thayer's 
Marshall,  103-110.] 


ADVISORY   OPINIONS 

[In  1883  the  Senate  of  Rhode  Island  asked  the  opinion  of  the 
judges  of  the  Supreme  Court  on  the  question  whether  the  General 
Assembly  had  the  power  to  call  a  constitutional  convention.  The 
judges  answered  in  the  negative,  on  the  ground  that  the  mode  pro- 
vided in  the  constitution  for  its  amendment  was  the  only  method  by 
which  it  could  lawfully  be  changed.  {In  re  Constitutional  Conven- 
tion, 14  R.  I.  649.)  This  conclusion  was  criticised  by  Hon.  Charles 
S.  Bradley,  formerly  Chief  Justice  of  Rhode  Island,  in  a  pamphlet 
entitled  "  The  Methods  of  Changing  the  Constitutions  of  the  States, 
especially  that  of  Rhode  Island.  Boston.  Alfred  Mudge  &  Son. 
1885."  The  following  article  was  prepared  by  Professor  Thayer  at 
the  request  of  Chief  Justice  Bradley,  who  was  his  cousin,  and 
appeared  as  an  appendix  to  the  pamphlet,  with  the  title,  "  Memo- 
randum on  the  Legal  Effect  of  Opinions  given  by  Judges  to  the  Ex- 
ecutive and  the  Legislative  under  Certain  American  Constitutions." 

On  the  questions  discussed  by  Chief  Justice  Bradley  reference 
may  be  made  to  Professor  Thayer's  note  in  his  Cases  on  Constitu- 
tional Law,  vol.  i,  p.  220.] 

1.  There  are  but  four  constitutions^  in  which  any  pro- 
vision is  made  for  taking  the  opinion  of  the  judges  by  the 

^  [Now  increased  to  seven.  "  In  this  country  the  constitutions  of 
seven  States  have  provided  for  obtaining  opinions  from  the  Judges  of  the 
highest  court  upon  application  by  the  executive  or  the  legislature,  viz., 
of  Massachusetts,  New  Hampshire,  Maine,  Rhode  Island,  Florida,  Colo- 
rado, and  South  Dakota.  In  one  other  State,  Missouri,  a  similar  clause 
was  introduced  in  the  Constitution  of  18C5,  just  after  the  war  ;  but 
it  continued  only  ten  years,  and  was  left  out  of  the  Constitution  of 
1875.  It  dates  in  Massachusetts  from  1780.  —  Part  II.,  c.  ill.  s.  2; 
In  New  Hampshire  from  1784,  —  Part  II.,  title,  Judiciary  Power;  in 
Maine  (formerly  a  part  of  Massachusetts)  from  1820,  —  Art.  VI., 
s.  .3;  in  Rhode  Island  from  1842,  —  Art.  X.,  s.  3  ;  in  Florida  from 
1868,  —  Art.  v.,  s.  16,  amended  in  1875,  —  Amendment  XL;  in  Colo- 
rado from  1886,  —  Amendment  to  Art.  VI.,  s.  3 ;  In  South  Dakota 
from  1889,  —  Art.  V.,  s.  13.  In  the  first  three  States,  the  judges  are 
to  give  their  opinions  '  upon  important  questions  of  law  and  upon 
solemn  occasions.'  In  Rhode  Island,  '  upon  any  question  of  law,  when- 
ever requested,'  etc.  In  Florida,  at  any  time,  upon  the  Governor's 
request  '  as  to  the  Interpretation  of  any  portion  of  this  Constitution, 
or  upon  any  point  of  law  '  (the  power  of  calling  for  opinions.  It  will 
be  noticed,  was  given  only  to  the  Governor ;    on  the  other  hand  it  was 


ADVISORY  OPINIONS  43 

executive  or  legislative  department,  —  those  of  Massachu- 
setts, New  Hampshire,  Maine,  and  Ehode  Island.     Thej^ 

a  wide  power,  covering  'any  point  of  law')  ;  this  was  amended  by 
limiting  the  last  alternative  to  '  any  question  affecting  his  executive 
powers  and  duties.'  As  it  now  stands,  the  Florida  clause  may  be 
compared  with  a  peculiar  one  in  the  constitution  of  Virginia  (Art.  IV., 
s.  6),  giving  the  governor  power  to  require  the  'opinion  in  writing 
of  tlie  attorney-general  upon  any  question  of  law  connected  with  his 
oflScial  duties.'  Opinions  rendered  under  this  provision  in  its  earlier 
and  later  form  are  found  in  12  Florida,  Gol  and  660,  both  in  1868 ; 
lb.  686  and  690,  both  in  1869  ;  13  Florida,  687  (1870)  ;  lb.  700  (1871)  ; 
15  Florida,  736  and  739,  both  in  1875;  and  16  Florida,  842  (1877). 
I  observe  nothing  in  them  indicating  any  impression  on  the  part  of 
the  judges  that  they  are  authoritative ;  while  on  the  other  hand  in 
12  Florida,  at  p.  664,  one  of  the  judges  (the  common  practice  here 
Is  that  of  separate  opinions)  hardly  conceals  his  surprise,  in  quoting 
the  intimations  of  a  Maine  opinion  in  7  Greenl.  482  (1830)  :  'It  will 
be  perceived,'  he  says,  '  that  the  justices  in  this  case  go  so  far  as 
to  say  that  the  Senate,  in  making  its  decision,  must  construe  the  con- 
stitution in  accordance  with  the  opinion  of  the  Court ;  thus  intimating 
that  their  opinion  Interpreting  a  clause  in  the  constitution  as  to  the 
manner  of  exercising  a  power  vested  exclusively  in  the  Senate,  was 
a  law  to  the  Senate  itself  in  its  action.'  Although  the  power  of  calling 
for  opinions  is  given  only  to  the  governor,  on  one  occasion  the  Legis- 
lature, by  a  concurrent  resolution,  requested  the  governor  to  ask  the 
judges  for  an  opinion  ;  and  upon  his  transmitting  the  resolution  to 
them  with  a  request  for  an  answer,  the  judges  gave  it  without  any 
remark.  12  Florida,  686.  In  Colorado,  the  provision  reads :  '  The 
Supreme  Court  shall  give  its  opinion  upon  important  questions  upon 
solemn  occasions,  when  required  by  the  Governor,  the  Senate,  or  the 
House  of  Representatives  :  and  all  such  opinions  shall  be  published  In 
connection  with  the  reported  decisions  of  the  court.'  This  has  been 
held  (In  the  Matter  of  Senate  Bill  No.  65,  12  Colo.  466,  In  1889)  to 
be  limited  to  questions  of  law  and  such  as  are  questions  publici  juris, 
and  to  call  not  merely,  as  elsewhere  generally  held,  for  the  opinions 
of  the  justices,  but  for  authoritative  judgments  of  the  court.  The  resort 
to  this  power  in  Colorado  was  prompt  and  troublesome.  See  a  group  of 
opinions  in  9  Colo.  620-642.  In  South  Dakota,  the  Governor  may  '  re- 
quire the  opinions  of  the  judges  of  the  Supreme  Court  upon  important 
questions  of  law  involved  in  the  exercise  of  his  executive  powers,  and 
upon  solemn  occasions.'  In  Missouri,  the  provision  only  varied  from 
that  in  Massachusetts  by  the  insertion  of  a  word,  — • '  upon  important 
questions  of  constitutional  law,*  etc. 

"In  the  Federal  Convention  of  1787,  it  was  proposed  that  'each  branch 
of  the  legislature,  as  well  as  the  supreme  executive,  shall  have  authority 
to  require  the  opinions  of  the  Supreme  Judicial  Court  upon  important 
questions  of  law,  and  upon  solemn  occasions.'  5  Ell.  Deb.  445.  But 
nothing  came  of  it.  It  is,  however,  interesting  to  see  that  the  first 
President,  who  had  also  presided  over  the  Convention,  asked  for  an 
opinion  from  the  justices.     [See  infra,  p.  53.] 

"  It  may  be  added  that  the  Constitution  of  the  Hawaiian  Islands  of 
1887,  Art.  70  (5  Haw.  Rep.  716),  gives  'the  King,  His  Cabinet,  and  the 
Legislature  .  .  .  authority  to  require  the  opinions  of  the  justices  of  the 
Supreme  Court  upon  important  questions  of  law,  and  upon  solemn  occa- 
sions.' This  provision  is  said  to  run  back  through  the  Constitution  of 
1864  (art.  70)  to  that  of  1852  (art.  88),  where  it  seems  to  have  been 
first  introduced,  in  a  slightly  different  form.  A  number  of  such  opinions 
are  preserved  In  the  Hawaiian  Reports,  beginning  with  one  entitled  '  The 


44  LEGAL  ESSAYS 

are  named  in  the  order  of  their  dates.  The  clause  was  put 
into  the  Constitution  of  Massachusetts  (the  only  consti- 
tution that  State  has  ever  had)  in  1780,  in  this  form: 
"  Each  branch  of  the  legislature,  as  well  as  the  governor 
and  council,  shall  have  authority  to  require  the  opinions 
of  the  justices  of  the  Supreme  Judicial  Court  upon  im- 
portant questions  of  law,  and  upon  solemn  occasions."  — 
Const.  Mass.,  Part  II.,  c.  iii.  s.  2. 

It  was  not  in  the  brief  Constitution  of  New  Hampshire 
of  1776,  but  appeared  first  in  the  fuller  document  of  1784, 
thus :  "  Each  branch  of  the  legislature,  as  well  as  the 
president  and  council,  shall  have  authority  to  require 
the  opinions  of  the  justices  of  the  Superior  Court  upon 
important  questions  of  law  and  upon  solemn  occasions/'  — 
Const.  N.  H.  (1784),  Part  II.,  title,  Judiciary  Poiver. 
The  clause  is  retained  in  the  same  part  of  the  Constitu- 
tion of  1792  (the  existing  one)  in  precisely  the  same  form, 
substituting  only  the  term  "governor"  as  the  later  name 
of  the  chief  magistrate. 

In  the  Maine  Constitution  of  1820  (Maine  has  had  but 
one)  the  provision  is:  "They  (the  justices  of  the  Supreme 
Judicial  Court)  shall  be  obliged  to  give  their  opinion  upon 
important  questions  of  law,  and  upon  solemn  occasions, 
when  required  by  the  governor,  council.  Senate,  or  House 
of  Eepresentatives."  —  Const.  Maine,  Art.  VI.,  s.  3. 

In  the  Ehode  Island  Constitution  of  1842  (the  only 
one;  there  was  nothing  in  the  charter  which  touches  this 
question)   it  is  provided:  "They   (the  judges  of  the  Su- 

Segregation  of  Lepers,'  ."5  Haw.  Rep.  162  (May,  1884)."  1  Thayer's  Const. 
Cas.  175,  176 ;  also  Supplementary  Memorandum  on  Advisory  Opinions, 
printed  by  Professor  Thayer  soon  after  original  paper. 

"It  should  have  been  stated  in  the  Memorandum  that  the  results 
there  reached  came  from  a  personal  examination  of  what  relates  to  the 
judicial  power,  in  all  the  American  constitutions,  with  their  amend- 
ments, included  in  Poor's  two  volumes  (1877),  compiled  by  order  of  the 
Senate  of  the  United  States.  There  are  one  hundred  and  two  constitu- 
tions, including  that  of  the  general  government.  Since  finding  that  the 
Florida  provision  was  put  under  the  head  of  the  executive  department,  I 
have  added  a  personal  examination  of  all  the  latest  constitutions  in 
these  volumes,  under  the  head  of  the  executive  and  legislative  depart- 
ments. I  have  also  examined  such  later  constitutions  as  are  known  to 
me."    Thayer's  Supplem.  Mem.  on  Adv.  Opin.] 


ADVISORY   OPINIONS  45 

preme  Court)  shall  also  give  their  written  opinion  upon 
any  question  of  law,  whenever  requested  by  the  governor, 
or  by  either  house  of  the  General  Assembly."  —  Const. 
K.  I.,  Art.  X.,  s.  3.    There  is  no  council  in  Rhode  Island. 

To  make  the  statement  complete,  it  should  be  added  that 
in  the  second  Constitution  of  Missouri,  that  of  1865,  there 
was  introduced,  for  the  first  time,  a  similar  provision: 
"  The  judges  of  the  Supreme  Court  shall  give  their  opinion 
upon  important  questions  of  constitutional  law,  and  upon 
solemn  occasions,  when  required  by  the  governor,  the  Sen- 
ate, or  the  House  of  Representatives ;  and  all  such  opinions 
shall  be  published  in  connection  with  the  reported  deci- 
sions of  said  Court."  —  Const.  Missouri  (1865),  Art.  VI., 
s.  11.  There  was  no  council  in  Missouri.  In  the  Con- 
stitution of  1875  (the  existing  one)  no  such  provision  is 
found. 

And  it  has  not  been  found,  I  believe,  in  any  other  con- 
stitution in  the  country,  past  or  present. 

2.  The  clause  appears  to  have  been  copied  into  the  other 
constitutions  from  that  of  Massachusetts.  The  identity 
or  close  similarity  of  the  language  points  pretty  plainly  to 
that.  In  Rhode  Island  there  is  a  peculiarity,  in  requiring 
a  written  opinion;  but  this  is  rather  an  apparent  differ- 
ence than  a  real  one,  the  American  usage  having  been 
uniform,  it  is  believed,  in  favor  of  written  opinions.  The 
short-lived  Missouri  clause  was  limited  to  questions  of 
constitutional  law.  And  it  may  be  added  that  in  Rhode 
Island  the  qualification  of  "  important "  questions  of  law 
and  that  of  "  solemn  "  occasions  are  omitted. 

3.  Where  did  Massachusetts  get  it?  That  question  is 
no  doubt  correctly  answered,  in  one  of  the  best  of  these 
opinions,  by  the  justices  of  the  Supreme  Court  of  Massa- 
chusetts. After  quoting  the  provision,  they  remark :  "  This 
article,  as  reported  in  the  convention  that  framed  the  Con- 
stitution, limited  the  authority  to  the  governor  and  council 
and  the  Senate,  and  was  extended  by  the  convention  so  as 
to  include  the  House  of  Representatives;    and,  as  may  be 


46  LEGAL  ESSAYS 

inferred  from  the  form  in  which  it  was  originally  pre- 
sented, evidently  had  in  view  the  usage  of  the  English 
Constitution,  by  which  the  king,  as  well  as  the  House  of 
Lords,  whether  acting  in  their  judicial  or  their  legislative 
capacity,  had  the  right  to  demand  the  opinions  of  the 
twelve  judges  of  England"  (126  Mass.  at  p.  561).  This 
opinion  (an  extremely  learned  and  valuable  consideration 
of  the  meaning  of  the  term  "  money-bills,''  which  is  under- 
stood to  have  been  drawn  by  Chief  Justice  Gray)  refers  to 
English  precedents,  coming  down  as  late  as  1760,  in  which 
the  king  called  for  opinions  from  the  judges;  and  also 
adverts  to  the  well-known  practice,  still  continuing,  by 
which  the  House  of  Lords  requires  such  opinions.^  The 
latest  recorded  instance  in  which  such  a  response  was  ren- 
dered to  the  king  was  one  of  March,  1760,  concerning  the 
proposed  trial  of  Lord  George  Sackville  by  court  martial, 
reported  in  2  Eden  (Appendix),  371. 

4.  What  is  the  legal  quality  of  such  opinions?  Are 
they  authoritative  declarations  or  merely  advisor}'? 

(a)  In  England.  The  character  of  all  these  opinions 
is  well  indicated  in  the  one  just  referred  to,  rendered  by 
Lord  Mansfield  and  other  judges  to  the  king  in  1760. 
After  briefly  stating  that  an  officer  who  had  been  dismissed 
from  the  service  could  nevertheless  be  tried  by  court  mar- 
tial, it  is  added :  "  But  as  the  matter  may  several  ways 
be  brought,  in  due  course  of  law,  judicially  before  some 
of  us  by  any  party  affected  by  that  method  of  trial,  if  he 
thinks  the  court  has  no  jurisdiction ;  or  if  the  court  should 
refuse  to  proceed,  in  case  the  party  thinks  they  have  juris- 
diction; we  shall  be  ready  without  difficulty,  to  change 
our  opinion,  if  we  see  cause,  upon  objections  that  may 

'  ["  The  giving  of  such  opinions  by  judges  is  not  an  exercise  of  the 
judicial  function.  The  relation  of  the  English  judges  to  the  king,  in 
former  days,  and  their  ancient  place  as  assistants  to  the  House  of  Lords, 
led  to  a  practice,  on  the  part  of  that  House,  as  well  as  the  Iflng,  of  call- 
ing on  them  for  advisory  or  '  consultative '  opinions.  This  may  be 
traced  very  far  bacls  in  our  records,  e.  g.,  in  1387  (2  Stat.  Realm,  102- 
104),  King  Richard  II.  puts  to  his  judges  a  long  string  of  questions." 
1  Thayer's  Const.  Cas.  175.] 


ADVISORY  OPINIONS  47 

be  then  laid  before  us,  though  none  have  occurred  to  us 
at  present  which  we  think  sufficient." 

But  the  matter  may  be  further  illustrated  by  considering 
the  opinions  given  to  the  House  of  Lords,  (1)  The  case 
in  which  the  Lords  in  their  judicial  capacity  ^  call  for  the 
opinion  of  the  judges,  is  a  very  familiar  one.^  No  one 
supposes  that  in  this  instance  the  law  Lords  are  bound  by 
the  opinions  thus  given.  It  is  unnecessary  to  cite  cases  to 
show  that  the  Lords  use  them  simply  as  advice.  O'Connell's 
Case  (11  Clark  &  Fin.  155)  is  one  where  the  decision  of 
the  Lords  was  against  the  opinion  of  a  majority  of  the 
judges.  (2)  A  well-known  case  where  the  judges  were 
called  on  for  an  opinion  in  a  matter  of  legislation  is  what 
is  known  as  the  Queen's  Case.  In  that  matter  no  litigation 
was  pending.  The  Lords  had  in  hand  a  legislative  measure, 
a  bill  of  pains  and  penalties  touching  Queen  Caroline,  and 
were  making  certain  preliminary  inquiries  and  examining 
witnesses.  The  judges  were  called  in  and  kept  at  hand 
to  answer  questions  of  evidence  from  time  to  time.  These 
answers,  in  several  instances  ill-considered,  and  hastily 
given,  as  appears  in  Hansard,  are  also  reported  in  2  Brod. 
&  Bing.  284,  from  which  they  are  often  cited  as  if  they  had 
been  given  in  the  course  of  a  regular  trial.  Their  true 
character,  as  touching  any  supposed  authoritative  quality, 
appears  to  be  correctly  indicated  by  a  valuable  English 
writer,  Best,  in  his  work  on  Evidence,  s.  474 :  "  It  may 
be  doubted  how  far  the  proceedings  in  Queen  Caroline's 
Case  are  binding  on  tribunals,  the  answers  of  the  judges 
to  the  House  of  Lords  having  no  binding  force  per  se  ^ ;  and 
although  in  that  case  the  House  adopted  and  acted  on 

'  A  body  which  Bagehot,  after  referring  to  the  Judicial  Committee  of 
the  Privy  Council,  characterized  as  "what  is  in  fact,  though  not  in  name, 
the  Judicial  Committee  of  the  House  of  Lords."  Bagehot,  English  Con- 
stitution  (,^d  ed.K  126. 

=  [A  recent  instance  of  this  is  the  Trial  of  Earl  Russell,  [1901]  A.  C. 
446] 

^  [So  Lord  Eldon  in  Head  v.  Head,  1  T.  &  R.  138,  140:  "  The  answers 
given  by  the  judges,  therefore,  although  entitled  to  the  greatest  respect, 
as  being  their  opinions  communicated  to  the  highest  tribunal  in  the 
Kingdom,  are  not  to  be  considered  as  judicial  decisions."] 


48  LEGAL  ESSAYS 

those  answers,  it  was  not  sitting  judicially,  but  with  a  view 
to  legislation  which  finally  proved  abortive,''  (3)  For 
an  instance  which  brings  out  with  the  greatest  plainness 
the  purely  advisory  quality  of  these  judicial  responses,  a 
very  well-known  precedent  may  be  cited,  M'Naghten's  Case, 
10  Clark  &  Fin.  200.  Here  not  only  was  there  no  litigated 
question  before  the  Lords,  but  not  even  any  pending  legis- 
lative question.  The  Lords,  in  the  course  of  their  debates, 
having  fallen  into  a  discussion  about  a  case  recently  tried 
at  the  Central  Criminal  Court,  but  not  in  any  way  before 
them,  —  a  case  developing  interesting  questions  in  the  law 
relating  to  insanity,  —  conceived  that  they  would  like  to 
know  a  little  more  accurately  what  the  law  on  these  points 
was.  They  accordingly  put  a  set  of  "  abstract "  questions 
to  the  judges,  —  questions  not  arising  out  of  any  business 
before  them,  actual  or  contemplated.  One  of  the  judges 
(Maule)  protested  against  this  proceeding,  but,  as  the 
others  answered,  he  also  answered.  The  Lords  took  notice 
of  this,  and  while  courteously  thanking  the  judges  for 
their  opinions,  expressed  a  unanimous  judgment  that  it 
was  proper  and  in  order  for  the  Lords  to  call  for  opinions 
on  "  abstract  questions  of  existing  law."  "'For  your  lord- 
ships," said  Lord  Campbell,  "  may  be  called  on,  in  your 
legislative  capacity,  to  change  the  law." 

It  needs  no  argument  to  show  that  opinions  so  given  are 
not  binding  upon  any  body,  and  should  not  be.  If  reasons 
were  asked  for  such  a  view,  it  would  be  enough  to  refer 
to  what  Mr.  Justice  Maule  suggested  in  his  protest,  when 
he  objected  that  the  questions  put  "  do  not  appear  to  arise 
out  of  and  are  not  put  with  reference  to  a  particular  case, 
or  for  a  particular  purpose,  which  might  explain  or  limit 
the  generality  of  the  terms  " ;  that  he  had  heard  no  argu- 
ment ;  and  that  he  feared  "  that,  as  the  questions  relate  to 
matters  of  criminal  law  of  great  importance,  the  answers 
to  them  by  the  judges  might  embarrass  the  administration 
of  justice  when  they  are  cited  in  trials." 

So  much  for  England. 


ADVISORY  OPINIONS  49 

(b)  To  turn  to  this  country.  It  might  be  anticipated 
that  since  the  constitutional  arrangement  now  under  dis- 
cussion was  introduced  into  Massachusetts  from  England, 
it  would  be  dealt  with  on  similar  principles.  It  has  been 
so  dealt  with.  The  first  recorded  opinion  given  by  the 
Massachusetts  justices  under  the  provision  in  question  was 
only  very  lately  reported,  in  126  Mass.  546.  The  several 
judges,  upon  very  short  notice,  came  personally  into  the 
Senate  on  Feb.  22,  1781,  and  "  delivered  their  several 
opinions  in  writing."  A  joint  order  of  the  two  legislative 
houses  had  called  for  opinions  in  writing.  It  is  quite 
apparent,  from  the  tone  of  these  answers,  that  the  judges 
conceived  of  their  function  as  merely  advisory.  Mr.  Justice 
Sargeant  says  that  he  has  done  as  well  as  is  possible  "  in 
the  very  short  time  allowed  me.  .  .  .  Perhaps,  if  I  had 
heard  all  the  arguments  that  have  been  made  use  of  (in 
the  legislature),  I  might  be  of  a  different  opinion."  Mr. 
Justice  Sewall  says :  "  I  do  not,  therefore,  at  present  see," 
etc.,  etc.  Mr.  Justice  Sullivan  civilly  remarks  that  he  is 
"  very  sensible  of  the  honor  done  to  the  bench  by  the  com- 
mand of  the  legislature  in  this  instance;  but  am  obliged 
to  say,  that  in  a  question  so  complicated,  and  of  such 
magnitude,  I  could  have  wished  that  a  longer  space  than 
two  days  had  been  allowed  me."  Other  early  opinions,  of 
1791  and  1807,  may  be  found  in  3  Mass.  567,  and  ib.  568. 

The  matter,  however,  has  been  expressly  passed  upon, 
both  in  opinions  of  the  character  now  under  consideration 
and  in  solemn  judgments  in  litigated  cases ;  and  it  is 
settled  doctrine  in  Massachusetts  that  such  opinions  have 
no  binding  quality.  Opinions  of  the  justices  in  7  Pick. 
125,  note,  at  p.  130;  5  Met.  at  p.  597;  9  Cush.  604;  122 
Mass.  at  p.  603 ;  126  Mass.  at  p.  566.  In  the  last  citation 
the  judges  say :  "  In  giving  such  opinions  the  justices  do 
not  act  as  a  court,  but  as  the  constitutional  advisers  of  the 
other  departments  of  the  government." 

But  the  best  citation  is  Com.  v.  Green,  12  Allen,  155, 
164.     This  is  a  decision  in  a  capital  case,  where  the  court 

4 


50  LEGAL  ESSAYS 

were  required  to  adjudicate  a  point  on  which  they  had  pre- 
viously given  an  opinion  to  the  governor.  The  judges 
advert  to  this  opinion,  declare  it  to  be  not  at  all  binding, 
and  state  that  they  have  sought  to  free  their  minds  from  all 
prepossessions  resulting  from  their  having  given  it.  "  The 
opinion,"  they  declare,  "  thus  given,  like  all  others  of  a 
similar  character,  was  formed  without  the  aid  of  counsel 
learned  in  the  law,  or  any  statement  of  the  reasons  on  which 
the  regularity  or  validity  of  the  proceedings  had  been  called 
in  question.  Although  it  is  well  understood  and  has  often 
been  declared  by  this  court,  that  an  opinion  formed  and 
expressed  under  such  circumstances  cannot  be  considered 
in  any  sense  as  conclusive  or  binding  on  the  rights  of 
parties,  but  is  regarded  as  being  open  to  reconsideration 
and  revision,"  yet  it  necessarily  supposes  that  an  opinion 
has  been  formed  by  the  judges,  and  the  court  feel  the  duty 
of  guarding  against  any  bias  from  this  fact,  etc.  So  also 
in  a  precisely  similar  situation  the  court  (Wilde,  J,)  said, 
in  Adams  v.  Bucklin,  7  Pick,  at  p.  127 :  "  We  do  not,  how- 
ever, consider  that  opinion  binding  upon  us  in  this  action," 
Such  is  the  doctrine  in  Massachusetts,  In  New  Hamp- 
shire the  same  view  appears  to  be  taken.  It  is  expressed  in 
an  opinion  of  the  justices  in  25  N,  H,  537.  The  Senate 
had  called  for  an  opinion  on  the  constitutionality  of  a 
certain  legislative  bill.  The  judges  advert  to  several  em- 
barrassing circumstances,  such  as  the  lack  of  precise  ques- 
tions, the  absence  of  any  aid  from  counsel,  etc.,  and  it  is 
then  added :  "  Upon  these  considerations  we  feel  it  due 
to  ourselves  in  justice  to  say,  that  whatever  opinions  we 
might  express  upon  this  bill  must  be  regarded  as  impres- 
sions by  which  we  should  not  feel  ourselves  bound,  if  the 
bill  should  become  a  law,  and  if  the  rights  of  a  citizen 
should  depend  on  its  construction."  And  again  in  an 
opinion  of  June  10,  1881,  a  date  not  yet  reached  in  the 
published  volumes  of  New  Hampshire  reports,^  the  judges 

1  [Now  60  N.  H.  585.] 


ADVISORY  OPINIONS  51 

in  advising  the  Senate  that  the  legislature  had  the  power 
and  right  to  proceed  then  to  the  election  of  a  United  States 
senator,  quote  the  language  of  the  judges  of  Massachusetts 
in  126  Mass.  566,  partly  cited  above,  and  say :  "  In  giving 
such  an  opinion,  the  justices  do  not  act  as  a  court,  but  as 
the  constitutional  advisers  of  either  branch  of  the  legis- 
lature requiring  their  opinion;  and  it  has  never  been  con- 
sidered essential  that  the  question  proposed  should  be  such 
as  might  come  before  them  in  their  judicial  capacity/'  It 
should  be  added  that  there  are  signs  here  and  there  in  the 
New  Hampshire  opinions  that  their  advisory  quality  is  less 
distinctly  apprehended  than  it  is  in  Massachusetts;  e.  g., 
in  58  N.  H.  at  p.  622,  one  of  the  judges  phrases  a  brief 
supplementary  opinion  of  his  own,  thus :  "  For  reasons  pecu- 
liar to  myself,  I  think  I  should  be  excused  from  sitting  as  a 
member  of  the  court  in  the  decision  of  this  question."  And 
he  goes  on  to  express  the  hope  that  "  the  question  having  now 
been  three  times  decided  by  the  court  without  any  dissent 
and  without  any  conflicting  decision,  it  may  be  considered  as 
finally  settled  and  put  at  rest."  But  such  expressions  weigh 
little  as  against  the  language  of  the  opinions  first  cited. 

The  judges  remark,  in  41  N.  H.  at  p.  552 :  "  We  have 
always  to  regret  that  when  called  upon  by  the  legislature 
for  our  opinions  upon  questions  of  law,  we  have  not  the 
usual  aid  from  the  investigations  of  interested  parties  and 
their  learned  counsel."  But  they  sometimes  call  in  their 
friends.  In  53  N.  H.  640,  in  an  answer  to  the  governor, 
the  judges  state  that  of  their  own  motion  they  had  written 
to  two  gentlemen,  "  requesting  each  as  a  friend  of  the 
court  to  furnish  to  the  members  of  the  court  a  brief  upon 
the  points  raised  by  your  inquiries.  Accordingly  we  have 
received  from  each  of  those  gentlemen  an  able  brief,  which 
we  have  considered."  ^ 

*  Something  of  the  same  sort  was  done  In  Massachusetts,  in  the  case 
of  an  opinion  given  in  1825.  7  Piclc.  at  p.  130,  note.  [In  Respub.  v.  De 
Longchamps,  1  Dall.  Ill,  115  (1784),  where  the  President  and  Executive 
Council  asiced  the  opinion  of  the  judges  on  several  questions  arising  out 
of  an  assault  on  the  French  consul,  the  judges  heard  arguments  of 
counsel  on  both  sides.] 


52  LEGAL  ESSAYS 

In  Rhode  Island  the  doctrine  of  the  advisory  character 
of  such  opinions  is  clearly  laid  down.  In  Taylor  v.  I  Mace, 
4  R.  1.  324,  the  court,  in  a  litigated  case,  had  occasion 
to  deal  with  a  question  which  had  formerly  been  the  sub- 
ject of  an  opinion  given  by  the  judges  to  the  governor. 
On  p.  362  the  court  (Ames,  C.  J.)  says  of  a  certain  ques- 
tion then  under  discussion :  "  This  is  the  first  time  since 
the  adoption  of  the  constitution  that  this  question  has  been 
brought  judicially  to  the  attention  of  the  court.  The 
advice  or  opinion  given  by  the  judges  of  this  court,  when 
requested,  to  the  governor  or  to  either  House  of  the  As- 
sembly, under  the  third  section  of  the  tenth  article  of  the 
constitution,  is  not  a  decision  of  this  court;  and  given,  as 
it  must  be,  without  the  aid  which  the  court  derives  in 
adversary  cases  from  able  and  experienced  counsel,  though 
it  may  afford  much  light  from  the  reasonings  or  research 
displayed  in  it,  can  have  no  weight  as  a  precedent."  ^  The 
italics  are  those  of  the  opinion.  —  A  phrase  occurs  in 
one  of  the  statements  of  the  judges  in  the  old  Ehode 
Island  case  of  Trevett  v.  Weeden,  which  may  perhaps  indi- 
cate practices  before  the  Eevolution  that  might  throw  light 
upon  the  question.  When  the  Superior  Court  of  Judi- 
cature for  the  County  of  Newport  had  rendered  a  decision 
in  the  case  above  named,  in  1786,  which  in  effect  annulled 


'  [Compare  Allen  v.  Danlelson,  15  R.  I.  480,  In  which  Knowles,  Peti- 
tioner, 13  R.  I.  00.  was  overruled,  and  the  court  said  of  that  case  (15 
R.  I.  482,  483)  :  "The  case  was  a  petition  for  an  opinion  on  a  case  stated, 
and  was  douhtless  submitted  without  full  argument  or  presentation  of 
authorities,  so  that  the  court,  prepossessed  in  favor  of  the  rule  in  bank- 
ruptcy on  the  score  of  equality  and  by  familiarity  with  it,  and  wishing 
to  avoid  a  diversity  of  rules,  supposing  that  there  were  two  lines  of 
decision  of  about  equal  authority  to  choose  between,  naturally,  without 
the  consideration  which  it  might  otherwise  have  bestowed,  cluisi'  (hat 
line  of  decision  which  was  in  accord  with  the  rule  in  bankruptcy,  riic 
case  is  not  without  respectable  support.  Amory  v.  Francis,  l(i  Mass. 
308  ;  Farnum  v.  Boutelle,  13  Mete.  159  ;  Wurtz,  Austin  &  McVeigh  v. 
Hart,  13  Iowa,  515.  But  we  have  no  doubt  that  we  should  have  decided 
the  case  diflferently,  if  we  had  had  before  us,  when  we  decided  it,  the 
same  array  of  authorities  which  we  have  before  us  now.  The  question 
then  is,  shall  we  adhere  to  It  out  of  regard  for  the  maxim  utare  decisis, 
or  shall  we  adopt  what  we  now  consider  the  sounder  rule?  We  have 
come  to  the  conclusion  that,  considering  how  recently  the  case  was 
decided,  very  little  harm  will  come  from  overruling  It.'M 


ADVISORY  OPINIONS  53 

an  act  of  the  legislature,  they  were  summoned  before  that 
body.  Mr.  Justice  Howell,  in  the  course  of  a  long  speech 
before  the  legislature,  remarked  that  "  the  order  by  which 
the  judges  were  before  the  house  might  be  considered  as 
calling  upon  them  to  assist  in  matters  of  legislation,  or  to 
render  the  reasons  of  their  judicial  determination."  While 
wholly  declining  to  do  the  last,  he  remarked  that  as  to  the 
former,  "  the  court  were  ever  ready,  as  constituting  the  legal 
counsellors  of  the  State,  to  render  every  kind  of  assistance 
to  the  legislature  in  framing  new  or  repealing  former  laws." 
3  Chandler's  Criminal  Trials,  327.  I  am  not  aware  of  any 
ante-Revolutionary  usage  of  the  sort  referred  to. 

It  is  an  interesting  fact  that  Washington,  in  1793, 
sought  to  take  the  opinion  of  the  judges  of  the  Supreme 
Court  of  the  United  States  as  to  various  questions  arising 
under  our  treaties  with  France.  They  declined  to  respond. 
The  President  and  Cabinet  came  to  the  conclusion  to  ask 
this  opinion  from  the  judges  on  July  12,  1793.  Those  who 
were  at  hand  appear  to  have  suggested  delay  until  they 
could  communicate  with  their  absent  associates.  A  letter 
of  July  23,  from  the  President  to  Chief  Justice  Jay  and 
his  brethren,  is  preserved,  in  which  he  assents  to  this  delay, 
but  expresses  the  pleasure  that  he  shall  have  in  receiving 
the  opinion  at  a  convenient  time.  (Sparks's  Washington, 
X.  359.)  The  date  was  but  a  little  later,  —  not  far  from 
August  1,  as  it  would  seem,  —  of  which  Marshall  speaks 
when  he  says  (Life  of  Washington,  Ed.  Phil.  1807,  V.  441)  : 
"  About  this  time  it  is  probable  that  the  difficulties  felt  by 
the  judges  of  the  Supreme  Court  in  expressing  their  senti- 
ments on  the  points  referred  to  them  were  communicated 
to  the  Executive.  Considering  themselves  merely  as  con- 
stituting a  legal  tribunal  for  the  decision  of  controversies 
brought  before  them  in  legal  form,  these  gentlemen  deemed 
it  improper  to  enter  the  field  of  politics  by  declaring  their 
opinion  on  questions  not  growing  out  of  the  case  before 
them."  1     It  was,  perhaps,  fortunate  for  the  judges  and 

^   [See  also  Thayer's  Marshall,  pp.  70,  71.] 


54  LEGAL  ESSAYS 

their  successors  that  the  questions  then  proposed  came  in 
so  formidable  a  shape  as  they  did.  There  were  twenty-nine 
of  them,  and  they  fill  three  large  octavo  pages  in  the  Ap- 
pendix to  the  tentli  volume  of  Sparks's  Washington.  Had 
they  been  brief  and  easily  answered  the  Court  might,  not 
improbably,  have  slipped  into  the  adoption  of  a  precedent 
that  would  have  engrafted  the  English  usage  upon  our 
national  system.  As  it  is,  we  may  now  read  in  2  Story, 
Const,  s.  1571,  that  while  the  President  may  require  the 
written  opinion  of  his  Cabinet,  "  he  does  not  possess  a  like 
authority  in  regard  to  the  judicial  department."  ^ 

^  ["  The  case  of  the  refusal  to  answer,  of  .Tay  and  his  associates,  may 
be  compared  with  the  'Report  of  the  .Tudges.'  3  Binney,  505  (1808). 
A  statute  of  I'ennsylvania  provided  '  That  the  judges  of  the  Supreme 
Court  are  hereby  required  to  examine  and  report  to  the  next  Legislature 
which  of  the  English  statutes  are  In  force  in  this  Commonwealth,'  etc. 
The  judges  answered,  without  remark,  in  an  elaborate  paper.  The  re- 
porter (p.  595)  has  this  note  :  '  This  important  document  is  here  Inserted 
at  the  request  of  the  judges  of  the  Supreme  Court.  In  many  respects  it 
deserves  to  be  placed  by  the  side  of  judicial  decisions.  ...  It  may  not, 
perhaps,  be  considered  as  authoritative  as  judicial  precedent,  but,'  etc. 
But  in  an  interesting  Minnesota  case.  In  the  Matter  of  the  Application  of 
the  Senate,  10  Minnesota,  78  (1865),  the  judges  refused  an  answer  to 
the  Senate,  and  declared  unconstitutional  a  statute  which  provided  that 
'  either  house  may  by  resolution  require  the  opinion  of  the  Supreme  Court 
or  any  one  or  more  of  the  judges  thereof  upon  a  given  subject,  and  It 
shall  be  the  duty  of  such  court,  or  judges  thereof,  when  so  requested, 
respectively  to  give  such  opinion  in  writing.'  "  Thayer's  Siipplem.  Mem. 
on  Adv.  Opins. 

"  A  statute  similar  to  that  declared  unconstitutional  in  Minnesota,  is 
found  in  Vermont  (Rev.  St.  Vt.  (1880)  s.  795)  :  'The  Governor,  when  the 
interests  of  the  State  demand  it.  may  require  the  opinion  of  the  Judges 
of  the  Supreme  Court  or  a  majority  of  them  upon  questions  of  law  con- 
nected with  the  discharge  of  his  duties.'  So  in  New  York,  by  a  pro- 
vision first  introduced  In  1829  (2  Rev.  St.,  ed.  1829,  658;  Part  iv.  tit.  1. 
ss.  13,  14),  when  a  person  was  convicted  and  sentenced  to  death,  the 
presiding  judge  was  required  to  inform  the  Governor  and  to  send  to 
him  the  judge's  notes  of  the  testimony ;  whereupon  the  Governor  might 
'  require  the  opinion  of  the  Chancellor,  the  justices  of  the  Supreme 
Court,  and  of  the  Attorney-General,  or  of  any  of  them,  upon  any  state- 
ment so  furnished.'  A  case  In  which  an  opinion  was  given  under  this 
statute  is  People  v.  Green,  1  Denio,  614  (1845).  By  a  statute  of  1847, 
the  judges  of  the  Court  of  Appeals  were  substituted  for  the  Chancellor ; 
and  the  law  so  stands  now.    (N.  Y.  Code  Crim.  Proc,  ss.  49.'i,  494.) 

"  Without  any  such  statute,  and  without  any  constitutional  require- 
ment, the  judges  have  sometimes  been  called  on  for  such  extra-judicial 
advice  and  aid,  and  have  given  it.  There  are  indications  that  this  was 
done,  more  or  less,  during  the  colonial  period,  —  as  in  the  expressions  of 
Mr.  .Justice  Howell  (ante.  p.  5.3)  in  the  Rhode  Island  case  of  Trevett  v. 
Weeden  in  1786.  On  February  2.5,  1780,  the  Constitutional  Convention 
of  Ma-isachusetts  voted  '  to  signify  to  the  judges  of  the  Superior  Court  in 
writing  the  request  of  this  Convention  that  they  would  give  their  attend- 


ADVISORY  OPINIONS  55 

Eeference  has  now  been  made  to  the  principles  adopted 
in  all  of  the  four  States  before  mentioned,  excepting 
Maine.  As  to  Maine  there  is  something  different  to  say. 
The  early  procedure  here  showed  small  signs  of  any  im- 
pression on  the  part  of  the  judges  that  they  were  engaged, 
when  handing  in  these  responses,  in  a  matter  of  binding 
operation.  Early  opinions  are  found  in  2  Greenl.  431; 
3  ib.  477;  and  6  ih.  486.  In  6  Greenl.  513,  it  appears 
from  one  of  the  communications  of  the  judges  to  the  coun- 
cil, that  "  the  members  of  the  court  proceeded  to  ascertain 
each  other's  views  by  letter,  not  being  able  from  their 
scattered  situation  to  have  a  personal  interview."  And, 
again,  it  is  said,  that  "  questions  propounded  in  this  man- 
ner are  necessarily  decided  without  argument,  and  we  have 
not  been  able  to  meet  for  discussion  among  ourselves." 
Indeed  it  appears  {ib.  p.  507)  that  the  Chief  Justice  sent 
in  his  opinion  without  consulting  his  associates  at  all,  and 
notified  his  scattered  brethren  of  it,  "  requesting  them,  if 


ance  this  evening,  as  matters  of  importance  are  to  be  acted  on."  (Journal 
of  Conv.  of  1779-80,  142.)  In  Pennsylvania  (Archives,  vols.  8,  11,  and 
12)  there  are  various  instances  of  opinions  given  by  the  justices  to  the 
executive  department  between  1780  and  1790.  An  account  of  such  an 
opinion  is  found  in  Respublica  v.  De  Longchamps,  1  Dall.  Ill,  115-116 
(1784)  ;  and  an  opinion  or  'report'  Is  found  in  3  Binney,  Appendix, 
598  (1808).  For  other  like  opinions,  given  upon  request,  without  any 
legal  requirement,  see  Jameson,  Const.  Conv.,  4th  ed.,  663  (in  New 
York),  In  re  Power  of  the  Governor,  79  Ky.  621  (1881),  and  37  Neb.  425 
(1893).  In  this  last  case,  Norval,  J.,  gives  strong  reasons  for  refusing  to 
Join  with  his  brethren  in  giving  the  opinion.  It  seems  to  have  been  not 
an  uncommon  practice  in  Nebraska  to  give  them. 

"  In  England  the  judges  are  sometimes  called  upon  to  exercise  what 
is  there  called  a  '  consultative  '  function  ;  but  its  non-judicial  quality 
is  distinctly  asserted.  Ex  parte  County  Council  of  Kent,  [18911  1 
Q.  B.  725 :  compare  Overseers  v.  L.  &  N.  W.  R'y.  Co.,  4  App.  Cas.  30." 
1  Thayer's  Const.  Cas.  183,  n. 

A  Delaware  statute  (Rev.  St.  1852,  c.  xxvii,  s.  4).  authorizing  the 
Governor  to  ask  the  opinion  of  the  Chancellor  and  Judges  "  touching 
the  proper  construction  of  any  provision  in  the  Constitution  of  this 
State  or  of  the  United  States  or  the  constitutionality  of  any  law  enacted 
by  the  Legislature  of  this  State,"  may  be  compared  with  the  Minnesota 
and  Vermont  statutes  above  referred  to.  In  1895  the  Legislature  by  a 
joint  resolution  (Laws  of  1895,  c.  107)  requested  tho  Govci-uor  to  sub- 
mit to  the  judges  a  question  as  to  the  apportionment  of  delegates  to  a 
constitutional  convention.  The  Executive  Register,  however,  discloses 
no  action  taken  by  the  Governor  in  the  matter,  and  it  may  be  inferred 
that  the  question  was  not  submitted.  (Compare  12  Florida,  686,  cited 
supra,  p.  43,  n.)] 


56  LEGAL  ESSAYS 

they  think  proper,  to  adopt  a  similar  mode  of  proceeding." 
Is  it  to  be  supposed  that  such  opinions  are  binding  upon 
any  body?  And  yet  tlie  justices  of  the  Supreme  Court  of 
Maine,  in  January,  1880  (70  Maine,  at  p.  583),  in  an 
opinion  answering  certain  questions  put  by  the  legislature, 
while  adverting  to  one  or  two  previous  opinions  then  lately 
given,  held  the  following  remarkable  language :  "  Various 
questions,  involving  the  true  construction  of  the  constitu- 
tion and  statutes  .  .  .  arose,  and  the  governor  called  upon 
this  Court  for  its  opinion  on  the  questions  propounded. 
The  Court  was  required  by  the  constitution  to  expound 
and  construe  the  provisions  of  the  constitution  and  statutes 
involved.  It  gave  full  answers.  The  opinion  of  the  Court 
was  thus  obtained  in  one  of  the  modes  provided  in  the  con- 
stitution for  an  authoritative  determination  of  '  important 
questions  of  law.'  The  law  thus  determined  is  the  con- 
clusive guide  of  the  governor  and  council  in  the  performance 
of  their  ministerial  duties.  Any  action  on  their  part  .  .  . 
in  violation  of  the  provisions  of  the  constitution  and  law 
thus  declared  is  a  usurpation  of  authority  and  must  be  held 
void."  This  strange  doctrine  was  laid  down  with  no  cita- 
tion of  authority,  no  reference  to  any  line  of  reasoning 
upon  which  it  could  be  supported,  and  no  recognition  of 
the  history  and  the  law  bearing  upon  the  topic  in  hand, 
which  is  herein  set  forth.  It  should  also  be  said  that  it  was 
laid  down  at  a  time  of  great  political  excitement  as  regards 
the  questions  discussed. 

It  may  be  confidently  expected  that  the  subject,  in 
Maine,  will  not  rest  where  it  is  thus  left.^ 

*  [This  prediction  was  fully  verified  in  1901,  when  the  Judges, 
althouRh  differing  on  the  propriety  of  answering  the  questions  put  to 
them  by  the  House  of  Representatives,  all  expressly  stated  that  their 
answers  if  given  would  not  have  the  character  of  judicial  decisions. 
Five  of  the  judges  said  :  "  Another  reason  why  it  would  be  improper  for 
the  .Justices  to  answer  any  question  submitted,  unless  upon  a  solomn 
occasion,  is,  that  such  questions  frequently  affect  the  individual  rights 
of  citizens,  and,  unless  the  occasion  is  within  the  contemplation  of  the 
Constitution,  the  question  should  be  submitted  in  a  judicial  proceeding 
where  all  persons  interested  may  have  an  opportunity  to  appear  and  be 
heard  in  their  behalf.  An  opinion  given  In  answer  to  questions  thus 
propounded,  without  notice,  hearing  or  argument,  although  it  has  not 


ADVISORY  OPINIONS  57 

5.  It  will  be  well,  by  way  of  completing  this  statement, 
to  refer  to  the  usage  in  Missouri  under  the  Constitution  of 
1865.  Here  also  the  judges  held  that  their  function  was 
not  that  of  a  court.  In  55  Mo.  295  (in  1873),  they  had 
occasion  to  answer  a  call  of  the  House  of  Eepresentatives 
upon  "  the  Supreme  Court  of  this  State  to  give  their 
opinion  to  this  House,"  etc.  The  judges  reply :  "  If  the 
annexed  resolution  is  to  receive  a  literal  interpretation,  it 
appears  to  be  a  call  on  the  Supreme  Court  for  its  opinion 
as  to  the  constitutionality  of  the  present  township  and 
organization  law.  This  Court  has  no  authority  ...  to 
give  opinions  on  abstract  questions  of  law.  Its  office  is  to 
hear  and  determine  real  controversies.  ...  It  was  not  the 
intention  of  Sec.  11  of  Article  VI.  of  the  Constitution  to 
allow  the  Supreme  Court  to  give  its  opinion  on  questions  of 
constitutional  law,  referred  to  in  that  section.  The  judges 
and  not  the  court  are  required  by  that  section,  etc.;  .  .  . 
but  assuming  that  the  intention  of  the  resolution  was  that 
the  judges  should  give  their  opinion  as  law  officers  pro 
hac  vice,  we  will  proceed,"  etc.  After  this  it  is  strange  to 
find  the  reporter  describing  this  as  an  "  opinion  of  the 
Supreme  Court."  The  first  instance  of  these  opinions  in 
Missouri  is  one  of  Nov.  27,  1865,  reported  in  37  Mo.  129. 
The  second  response  (37  Mo.  135),  on  Dec.  9,  1865,  de- 
clined to  answer  certain  questions  of  the  Senate,  and 
defined  in  very  narrow  limits  the  power  of  the  other 
departments  to  ask  the  opinion  of  the  judges.  In  like 
manner  they  also  declined  to  answer  questions  of  the 
Senate  in  51  Mo.  586,  and  said :  "  It  is  not  contemplated 
by  the  Constitution  that  the  judges  are  to  give  their  opinion 


the  binding  force  of  a  judgment  of  court,  is  certainly  prejudicial  to  the 
interests  of  those  to  whom  it  is  adverse."  (95  Maine,  560.)  The  other 
three  judges  said  :  "  It  is  not  now  questioned  that  the  opinions  given 
under  this  constitutional  provision  are  not  adjudications,  and  are  not 
within  the  principle  of  stare  decisis.  They  are  merely  opinions  in  the 
way  of  advice,  like  those  of  counsel.  The  justices  giving  them  are  In 
no  degree  bound  to  adhere  to  them  when  the  same  questions  arise  again, 
should  argument  or  further  research  and  reflection  change  their  prior 
views."     (95  Maine,  57.').)     See  also  note  2,  p.  34,  supra.] 


58  LEGAL  ESSAYS 

on  any  questions  which  may  afterwards  come  before  them 
for  adjudication."  Again,  in  February,  1874  (55  Mo. 
497),  they  declined,  "with  the  highest  respect  for  the 
House  of  Eepresentatives,"  to  answer  certain  questions. 
The  next  and  last  instance  of  these  responses  is  given,  as 
of  "October  term,  1874,"  in  58  Mo.  369.  The  judges 
again  declined  to  answer  the  questions  put  to  them;  and 
thereupon  the  Constitution  of  the  next  year  wholly  relieved 
them  of  this  sort  of  duty.^  It  is  pretty  manifest  that  the 
judges  put  upon  the  Constitution  of  1865  a  much  narrower 
construction  than  it  should  have  received,  in  view  of  the 
origin  and  history  as  herein  traced  of  the  function  which 
they  were  exercising;  but  as  regards  the  advisory  nature 
of  this  function,  they  were  in  accord  with  almost  all  the 
precedents. 

6.  Upon  the  whole,  it  seems  clear  that  the  opinions 
herein  referred  to  are  purely  advisory.  There  is,  indeed, 
a  popular  impression  that  they  are  on  the  same  footing  as 
decisions  in  litigated  cases;  witness,  e.g.,  the  language  of 
leading  newspapers,  such  as  the  "  Boston  Daily  Advertiser " 
of  Jan.  12,  1880.2    But  if  such  responses  under  any  of  our 

.  '  Instances  of  declining  to  answer  may,  perhaps,  be  found  elsewhere, 
p.  .(/.,  in  122  Mass.  600 ;  but  the  refusals  in  Missouri  in  their  ten  years' 
experience  probably  outnumber  all  in  the  four  New  England  States  from 
the  beginning.  Indeed,  outside  of  Missouri,  I  do  not  recall  a  second  case. 
[See  also  148  Mass.  623;  186  Mass.  603,  608;  100  Mass.  611,  613; 
56  N.  H.  574  ;  67  N.  H.  600  ;  85  Maine,  545,  where  in  spite  of  the  Gov- 
ernor's statement  in  the  question  put  by  him  of  his  belief  that  it  was  a 
"  solemn  occasion,"  the  court  replied  that  it  was  not,  and  declined  to 
answer  on  this  ground  ;  and  95  Maine,  564,  where  a  similar  result  was 
reached  by  a  majority  of  the  court,  although  three  of  the  judges  tools 
the  view  that  they  had  no  right  to  review  the  legislature's  conclusion 
on  this  point,  and  accordingly  returned  an  answer  to  the  questions 
which  their  five  brethren  had  refused  to  answer.  1 

*  This  leading  New  England  newspaper  designated  the  opinion  of  the 
Maine  judges  above  quoted  as  a  "  decision  of  the  court,"  and  laid  it 
down  that  there  are  two  ways  of  exercising  judicial  power,  —  one,  the 
regular  way  of  litigation,  and  the  other,  that  of  giving  these  opinions,  — 
and  that  they  are  equally  binding.  "  So  far,"  it  added,  "  as  Gov.  Garce- 
lon  and  his  council  are  concerned,  there  can  be  no  doubt  of  its  binding 
force.  .  .  .  The  opinion  of  the  court  is  supreme  and  binding  upon  all 
in  authority  as  public  officers,  as  much  as  a  final  judgment,  entered  up 
after  a  full  hearing,  is  upon  an  individual.  In  the  constitutional  method 
...  a  decision  has  been  reached,  and  it  is  no  longer  advice  or  counsel, 
but  has  tha  force  of  the  constitution  Itself.    The  view  of  Gov.  Garcelon 


ADVISORY  OPINIONS  59 

constitutions  are  to  hold  their  place  (and  it  appears  to  me 
that  they  are  useful),  it  is  of  grave  importance  that  the 
notion  of  their  binding  quality  should  be  dispelled. 

would  make  a  farce  of  all  judicial  appeals,"  etc.  Since  I  have  criticised 
the  Maine  opinion,  I  false  leave  to  add  that  I  sympathized  with  the  side 
which  that  opinion  supported,  and  greatly  admired  the  political  good 
sense  which  led  all  parties,  under  the  circumstances  of  that  time,  to 
accept  the  conclusions  of  the  judges. 


LEGAL    TE^^DER 

[Tliis  article  was  written  in  1887  for  one  of  the  earliest  numbers 
of  the  Harvard  Law  Review  ( 1  Harv.  Law  Rev.  73) .] 

The  question  whether  Congress  has  the  power  to  make 
paper  a  good  tender  in  payment  of  debts,  and  the  question 
whether  under  any  given  circumstances  it  is  wise  or  right 
that  Congress  should  use  it,  are  very  different  things.  He 
who  asserts  the  power  may  well  enough  deny  the  wisdom, 
the  justice,  or  the  morality  of  any  particular  instance  of 
its  exercise;  recalling  what  Sir  Matthew  Hale  said  of  the 
king's  prerogative  regarding  the  coin :  "  It  is  true  that  the 
imbasing  of  money  in  point  of  allay  hath  not  been  very 
usually  practised  in  England,  and  it  would  be  a  dishonor 
to  the  nation  if  it  should  .  .  .  but  surely  if  we  respect  the 
right  of  the  thing,  it  is  within  the  king's  power  to  do  it.''  ^ 
The  topic  which  it  is  now  proposed  to  consider  is  the  purely 
legal  one  of  constitutional  power. 

I.  As  regards  the  clauses  of  the  Constitution  relating  to 
money,  and  as  to  the  opinion  of  the  framers  of  it  about  the 
emission  of  bills  and  making  paper  a  legal  tender. 

The  specifications  of  the  power  which  is  given  to  the 
Congress  of  the  United  States  in  the  Constitution,  relating 
to  money,  are  two :  power  is  given  to  borrow  money  and  to 
coin  money.  Art.  I.,  Sec.  8,  clause  2,  reads:  (The  Congress 
shall  have  power)  "  to  borrow  money  on  the  credit  of  the 
United  States."  In  clause  5  the  power  is  given  "  to  coin 
money,  regulate  the  value  thereof,  and  of  foreign  coin,  and 
fix  the  standards  of  weights  and  measures."  Provisions 
corresponding  to  these  are  found  in  Art.  9,  Sees.  4  and  5, 
of  the  Articles  of  Confederation ;    and  the  language  there 

'  1  Hale,  P.  C.  193. 


LEGAL  TENDER 

used  accounts  in  part  for  that  of  the  Constitution.  The 
clauses  above  quoted  originally  stood,  in  Pinckney's  Plan 
of  a  Federal  Constitution/  as  follows :  "  The  Legislature 
of  the  United  States  shall  have  the  power  to  borrow  money 
and  emit  bills  of  credit ;  ...  to  coin  money,  and  regulate 
the  value  of  all  coins,  and  fix  the  standard  of  weights  and 
measures."  The  Plan  was  referred  to  a  committee.  In 
the  draft  of  the  Constitution  reported  by  the  committee  of 
detail  2  on  August  6,  after  more  than  two  months,  the  first 
clause  stood  nearly  as  before,  while  the  other  one  read 
thus :  "  to  coin  money,  to  regulate  the  value  of  foreign 
coin."  There  was  now  no  difficulty  in  regard  to  the  clause 
about  coining  money ;  it  passed  without  opposition,  taking 
on  at  some  later  stage  the  shape  in  which  it  now  stands, 
namely,  that  which  is  first  quoted  above.  As  regards  the 
other  clause,  that  part  of  it  was  stricken  out  which  author- 
ized Congress  to  emit  bills,  and  it  was  left  thus :  "  to  borrow 
money  on  the  credit  of  the  United  States."  In  the  articles 
of  Confederation  it  had  been:  "to  borrow  money  or  emit 
bills  on  the  credit  of  the  United  States ; "  and  now,  in  the 
final  result,  they  merely  struck  out,  "  or  emit  bills." 

At  no  time  did  any  plan  or  draft  of  the  Constitution 
contain  anything  which  in  express  terms  touched  the 
making  of  bills  by  Congress  a  legal  tender;  nothing  was 
said  for  or  against  that  power.  That  omission  was  not, 
of  course,  because  the  subject  was  unfamiliar;  it  was,  in 
fact,  very  much  brought  to  the  attention  of  the  framers 
of  the  Constitution,  and  so  were  all  the  possibilities  of 
legislative  action  about  it.  It  was  suggested  by  Madison 
that  this  power  of  emitting  bills  of  credit  should  not  be 
struck  out,  but  that  the  making  of  such  bills  a  legal  tender 
should  be  prohibited.  It  was  suggested  by  others  that  if 
there  were  merely  a  striking  out  and  no  prohibition,  the 
power  both  to  emit  bills  and  to  make  them  a  legal  tender 
would  exist  in  Congress.     But  still   no  prohibition  was 

1  5  Elliott's  Debates,  IHO. 
'  lb.  378. 


62  LEGAL  ESSAYS 

inserted,  and  there  was  simply  a  striking  out  of  the  express 
authority  to  emit  bills.^ 

Now,  as  regards  the  States.  In  Pinckney's  Plan,  Art. 
XI.,2  they  were  forbidden,  "  without  the  consent  of  the 
Legislature  of  the  United  States  .  .  .  (to)  emit  bills  of 
credit  (or),  make  anything  but  gold,  silver,  or  copper  a 
tender  in  payment  of  debts."  By  the  report  of  the  com- 
mittee of  detail  ^  they  were  forbidden  absolutely  to  coin 
money ;  and  the  previous  prohibition,  "  without  the  consent 
of  the  Legislature  of  the  United  States,"  was  continued  as 
to  the  clause  about  emitting  bills  of  credit,  or  making  any- 
thing but  specie  a  tender  in  payment  of  debts.  This  condi- 
tion was  afterwards  stricken  out,^  and  the  whole  provision 
on  the  subject  as  regards  the  States,  finally  took  its  present 
form  of  an  absolute  prohibition.^ 

As  things  stood,  therefore,  when  the  instrument  was 
laimched,  and  as  they  stand  now;  f,rst,  both  the  Union 
and  the  States  could  borrow  money;  second,  the  States 
could  not  coin  money,  and  they  could  not  give  the  quality 
of  "  a  tender  in  payment  of  debts  "  to  anything  but  gold 
and  silver  coin ;  third,  the  Union  could  "  coin  money, 
regulate  the  value  thereof,  and  of  foreign  coin."  It  was 
not  restricted  as  to  the  metal  it  should  coin.  It  was  not 
given  any  express  power  to  give  or  to  withhold  from  its 
own  coin  or  any  other,  the  quality  of  a  legal  tender  in  pay- 
ment of  debts;  and  it  was  not  denied  any  usual  or  natu- 
rally implied  power  of  this  sort;  fourth,  the  States  could 

'  /&.  434. 

2  76.  131. 

»  76.  381. 

*  Ih.  484,  485. 

»  Const.  U.  S.,  Art.  I.,  Sec.  10,  clause  1  :  "No  State  shall  .  .  .  coin 
money,  emit  bills  of  credit,  make  anything  but  gold  and  silver  coin  a 
tender  in  payment  of  debts."  What  was  meant  by  emitting  bills  of 
credit  was  afterwards  a  matter  of  controversy  in  the  courts.  The  defi- 
nition of  "  bills  of  credit  "  by  the  Supreme  Court  (by  the  majority,  per 
Marshall,  C.  J.)  in  Craig  v.  Mo.,  4  Pet.  432  (1830),  included  any  paper 
medium  issued  by  a  State  for  the  purposes  of  common  circulation.  But 
this  was  afterwards  restricted  to  bills  issued  by  the  State,  and  "  con- 
taining a  pledge  of  its  credit."  Briscoe  v.  Bk.  of  Ky.,  11  Pet.  2."»7 
(1837)  ;  Darrington  v.  Alabama,  13  How.  12  (1851).  This  change  saved 
the  State  banks. 


LEGAL  TENDER  63 

not  emit  bills,  and,  of  course,  they  could  not  borrow  by  the 
aid  of  such  bills;  fifth,  as  to  the  power  of  Congress  to  emit 
bills,  to  supply  a  paper  currency,  or  to  make  it  a  legal 
tender,  the  Constitution  was  silent. 

The  questions  present  themselves.  Can  Congress  emit 
bills?  Can  it  make  them  a  legal  tender?  Can  it  make 
anything  else  a  legal  tender?  In  answer  to  the  last  of  these 
questions,  all  agree  that  Congress  can  make  coin  a  legal 
tender,  —  any  coin.  It  is  not  restricted  to  its  own  coin ; 
and  it  is  not  restricted  to  gold  and  silver.  The  power  to 
do  this  is  fairly,  although  not  necessarily,  implied  in 
that  of  coining  and  regulating  the  value  of  coin.  In  view 
of  the  silence  of  the  Constitution,  the  usual  functions 
of  coined  money,  and  the  usual  powers  of  a  govern- 
ment in  regard  to  it,  such  a  power  cannot  for  a  moment  be 
doubted. 

Can  Congress  emit  bills  and  make  them  a  legal  tender? 
In  considering  the  action  of  the  Convention  which  framed 
the  Constitution  it  is  interesting  to  observe  that  this  ques- 
tion presented  itself,  for  the  most  part,  not  as  a  twofold 
question,  but  as  a  single  one.  The  matter  discussed  was 
the  emission  of  bills,  ^^^latever  this  might  mean,  this  was 
the  dangerous  thing.  This  was  the  power  which  it  was 
proposed,  in  terms,  to  give,  and  this  only;  and  this  only 
is  what  was  stricken  out.  If  it  should  turn  out  that  the 
power  of  emitting  bills  was  not  gone,  by  merely  striking 
out  the  grant,  then,  of  course,  that  act  is  not  conclusive 
upon  the  question  of  giving  them  the  legal  tender  quality. 
This  power  of  making  paper  a  legal  tender  may,  indeed, 
be  wanting  for  other  reasons,  but  it  is  not  wanting  by 
reason  merely  of  striking  out  the  expression  of  a  power  to 
emit  bills. 

Let  us  see  just  what  took  place  in  the  Convention  as 
regards  bills  of  credit,  and  what  was  then  thought  to  be 
the  effect  of  its  action.  What  actually  took  place  may 
be  seen  (so  far  as  we  have  any  report  of  it)  by  looking  at 
pages  434  and  435  of  the  fifth  volume  of  Elliott's  Debates. 


64  LEGAL  ESSAYS 

The  Convention  was  discussing,  on  August  16,  the  draft 
of  a  Constitution  submitted  ten  days  before  by  the  Com- 
mittee of  Detail :  — 

Mr.  GouvERNEUB  MoKKis  moved  to  strike  out  "  and  eijiit  bills  on 
the  credit  of  the  United  States."  If  the  United  States  had  credit, 
such  bills  would  be  unnecessary;  if  they  had  not,  unjust  and  use- 
less.—  Mr.  Butler  seconds  the  moLion.  —  Mr.  Madison.  Will  it 
not  be  sufficient  to  prohibit  the  making  them  a  tender?  This  will 
remove  the  temptation  to  emit  them  with  unjust  views;  and  promis- 
sory notes,  in  that  shape,  may  in  some  emergencies  be  best.  —  Mr. 
GouvEBNEUR  MoRRis.  Striking  out  the  words  will  leave  room  still 
for  notes  of  a  responsible  minister,  which  will  do  all  the  good  with- 
out the  mischief.  The  moneyed  interest  will  oppose  the  plan  of  gov- 
ernment, if  paper  emissions  be  not  prohibited.  —  Mr.  Gobham  was 
for  striking  out  without  inserting  any  prohibition.  If  the  words 
stand,  they  may  suggest  and  lead  to  the  measure.  —  Mr.  Mason  had 
doubts  on  the  subject.  Congress,  he  thought,  would  not  have  the 
power  unless  it  were  expressed.  Though  he  had  a  mortal  hatred  to 
paper  money,  yet,  as  he  could  not  foresee  all  emergencies,  he  was 
unwilling  to  tie  the  hands  of  the  legislature.  He  observed  that  the 
late  war  could  not  have  been  carried  on,  had  such  a  prohibition  ex- 
isted. —  Mr.  Gorham.  The  power,  as  far  as  it  will  be  necessary  or 
safe,  is  involved  in  that  of  borrowing.  —  Mr.  Mebceb  was  a  friend 
to  paper  money,  though,  in  the  present  state  and  temper  of  America, 
he  should  neither  propose  nor  approve  of  such  a  measure.  He  was, 
consequently,  opposed  to  a  prohibition  of  it  altogether.  It  will 
stamp  suspicion  on  the  government,  to  deny  it  a  discretion  on  this 
point.  It  was  impolitic,  also,  to  excite  the  opposition  of  all  those 
who  were  friends  to  paper  money.  The  people  of  property  would  be 
sure  to  be  on  the  side  of  the  plan,  and  it  was  impolitic  to  purchase 
their  further  attachment  with  the  loss  of  the  opposite  class  of  citi- 
zens. —  Mr.  Ellswobth  thought  this  a  favorable  moment  to  shut 
and  bar  the  door  against  paper  money.  The  mischiefs  of  the  various 
experiments  which  had  been  made  were  now  fresh  in  the  public 
mind,  and  had  excited  the  disgust  of  all  the  respectable  part  of 
America.  By  withholding  the  power  from  the  new  government, 
more  friends  of  influence  would  be  gained  to  it  than  by  almost  any- 
thing else.  Paper  money  can  in  no  case  be  necessary.  Give  the 
government  credit,  and  other  resources  will  offer.  The  power  may 
do  harm,  never  good.  —  Mr.  Randolph,  notwithstanding  his  antip- 
athy to  paper  money,  could  not  agree  to  strike  out  the  words,  as  he 


LEGAL  TENDER  65 

could  not  foresee  all  the  occasions  that  might  arise. — Mr.  Wilson: 
It  will  have  a  most  salutary  influence  on  the  credit  of  the  United 
States  to  remove  the  possibility  of  paper  money.  This  expedient 
can  never  succeed  whilst  its  mischiefs  are  remembered ;  and,  as 
long  as  it  can  be  resorted  to  it  will  be  a  bar  to  other  resources.  — 
Mr.  BuTLEE  remarked  that  paper  was  a  legal  tender  in  no  country 
in  Europe.  He  was  urgent  for  disarming  the  government  of  such  a 
power.  —  Mr.  Mason  was  still  averse  to  tying  the  hands  of  the 
legislature  altogether.  If  there  was  no  example  in  Europe,  as  just 
remarked,  it  might  be  observed,  on  the  other  side,  that  there  was 
none  in  which  the  government  was  restrained  on  this  head.  —  Mr. 
Read  thought  the  words,  if  not  struck  out,  would  be  as  alarming  as 
the  mark  of  the  beast  in  Revelation.  —  Mr.  Langdon  had  rather 
reject  the  whole  plan  than  retain  the  three  words,  "  and  emit  bills." 

Morris's  motion  to  strike  out  was  then  carried  by  a  vote 
of  nine  States  to  two.  In  a  note  at  the  bottom  of  page  435, 
in  accounting  for  the  vote  of  Virginia,  Madison  says: 
"  This  vote  in  the  affirmative  by  Virginia  was  occasioned 
by  the  acquiescence  of  Mr.  Madison,  who  became  satisfied 
that  the  striking  out  of  the  words  would  not  disable  the 
government  from  the  use  of  public  notes  so  far  as  they 
could  be  safe  and  proper ;  and  would  only  cut  off  the  pretext 
for  a  paper  currency,  and  particularly  for  making  the  bills 
a  tender,  either  for  public  or  private  debts." 

Now.  in  regard  to  that  discussion,  observe  one  or  two 
points:  first,  that  the  objectionable  thing  was  not  merely 
making  paper  a  legal  tender,  but  having  a  paper  currency 
at  all.  Madison's  suggestion  to  insert  a  prohibition  upon 
making  bills  a  legal  tender,  was  met  by  saying  that  all 
paper  emissions  must  be  prohibited;  and  Madison's  note 
shows  that  he  conceived  that,  in  their  final  action,  they 
were  cutting  away  all  pretext  for  a  paper  currency,  and 
not  merely  for  making  it  a  legal  tender;  second,  eleven 
persons  only  are  reported  as  speaking  in  this  discussion  out 
of  fifty-five,  who,  at  one  time  or  another,  attended  the  Con- 
vention :  ^   and  most  of  those  who  spoke  appear  to  have 

'   1  Ell.  Deb.  125. 
5 


66  LEGAL  ESSAYS 

assumed  that  striking  out  the  phrase  "  emit  bills  on  the 
credit  of  the  United  States "  was  equivalent  to  prohibi- 
tion.i  But,  although  most  of  the  members  may  have 
assumed  this,  all  of  them  did  not.  One  prominent  and 
respected  member,  Mr.  Gorham,  from  Massachusetts,  dis- 
tinctly made  the  point  that,  while  he  favored  striking 
out,  he  would  not  consent  to  prohibition;  he  would  strike 
out,  because  leaving  the  words  in  would  be  a  standing 
temptation  to  use  the  power.  Madison  also  tells  us,  in 
explaining  his  vote,  that  he  thought  there  would  still  be 
some  power  of  using  "  public  notes."  Of  these  eleven 
speakers,  five,  viz. :  Madison,  Mason,  Gorham,  Mercer,  and 
Randolph  expressed  themselves  as  not  in  favor  of  wholly 
prohibiting  the  emission  of  bills.  And  so,  in  accounting 
for  the  large  vote  in  favor  of  Morris's  motion,  it  is  reason- 
able to  suppose  that  a  considerable  number  shared  the 
opinion  of  Gorham,  that  striking  out  was  not  equivalent 
to  prohibition.  This  sagacious  policy  of  silence,  rather 
than  positive  grant  or  positive  prohibition,  as  regards  the 
powers  and  duty  of  the  Union,  was  resorted  to  on  several 
occasions;  they  wished,  as  Gouverneur  Morris  is  reported 
to  have  said  of  the  instrument  which  they  were  preparing,^ 
to  "  make  it  as  palatable  as  possible."  For  example,  on  an 
unsuccessful  motion  to  strike  out  a  clause  making  the  com- 
pensation of  members  of  Congress  payable  out  of  the 
National  treasury,  Massachusetts  voted  to  strike  out: 
"  not,"  says  Madison,  "  because  they  thought  the  State 
treasury  ought  to  be  substituted,  but  because  they  thought 
nothing  should  be  said  on  the  subject,  in  which  case  it 
would  silently  devolve  on  the  National  Treasury  to  support 
the  National  Legislature."  The  members  of  the  Conven- 
tion were  sensible  that  the  Constitution,  as  Madison  said, 
"had  many  obstacles  to  encounter,"  and  they  preferred 
sometimes  to  leave  the  instrument  silent  rather  than  to 


'  And  so  Luther  Martin,  in  his  Address  to  the  Legislature  of  Mary- 
land, 1  EH.  Deb.  .369,  370. 
»  4  Ell.  Deb.  611. 


LEGAL  TENDER  67 

invite  opposition  by  express  provisions,  either  one  way  or 
the  other.i 

Such  was  the  action  of  the  framers  of  the  Constitution 
as  to  the  power  to  emit  bills  and  the  closely  related  topic  of 
making  them  a  legal  tender.  Turn  now  and  consider  that 
it  is  the  established  law  of  the  country  that  Congress  may 
emit  bills.  There  is  no  doubt  about  that.  It  has  been 
practised  for  seventy  years  and  more;  and  Chief  Justice 
Chase,  in  delivering  the  opinion  of  the  Supreme  Court  of 
the  United  States,  in  Veazie  Bank  v.  Fenno,^  says :  "  It 
cannot  be  doubted  that,  under  the  Constitution,  the  power 
to  provide  a  circulation  of  coin  is  given  to  Congress.  And 
it  is  settled  by  the  uniform  practice  of  the  government,  and 
by  repeated  decisions,  that  Congress  may  constitutionally 
authorize  the  emission  of  bills  of  credit.  It  is  not  important 
here,"  he  adds,  "  to  decide  whether  the  quality  of  legal 
tender  in  payment  of  debts  can  be  constitutionally  imparted 
to  these  bills;  it  is  enough  to  say  that  there  can  be  no 
question  of  the  power  of  the  government  to  emit  them;  to 
make  them  receivable  in  payment  of  debts  to  itself ;  to  fit 
them  for  use,  by  those  who  see  fit  to  use  them,  in  all  the 
transactions  of  commerce;  to  provide  for  their  redemp- 
tion; to  make  them  a  currency  uniform  in  value  and  de- 
scription, and  convenient  and  useful  for  circulation.  .  ,  . 
Congress  has  undertaken  to  supply  a  currency  for  the  entire 
country.  ...  It  now  consists  of  coin,  of  United  States 
notes,   and   of   the  notes   of   the   National  banks.      Both 


'  Compare  the  striking  out  of  a  clause  empowering  Congress  to  grant 
charters  of  incorporation,  a  power  which,  nevertheless.  It  has,  5  Ell.  Deb. 
543,  544  ;  and  Jefferson's  comments,  4  ib.  610  ;  and  the  note,  ib.  611  ; 
and  see  Legal  Tender  Cases,  12  Wall.  559,  per  Bradley,  .T.  Compare  also 
the  fate  of  Mr.  Gerry's  motion  ("  he  was  not  seconded  ")  to  extend  to 
Congress  the  prohibition  which  was  put  upon  the  States,  as  to  impairing 
the  obligation  of  contracts,  5  Ell.  Deb.  546  ;  see  the  remarks  of  Morris, 
ib.  485.  Compare  also  the  language  of  Madison,  In  his  letter  of  Feb.  22, 
1831,  to  C.  J.  Ingersoll ;  a  certain  evil  which  he  is  there  discussing  was 
not,  he  says,  foreseen,  "  and.  If  It  had  been  apprehended,  It  is  question- 
able whether  the  Constitution  of  the  United  States  (which  had  many 
obstacles  to  encounter)  would  have  ventured  to  guard  against  it  by  an 
additional  provision."     4  Ell.  Deb.  G08. 

'  8  Wall.  533,  at  p.  548. 


68  LEGAL  ESSAYS 

descriptions  of  notes  may  properly  be  described  as  bills  ot 
credit.  .  .  .  Having  thus,  in  the  exercise  of  undisputed 
constitutional  powers,  undertaken  to  provide  a  currency  for 
the  whole  country,  it  cannot  be  questioned  that  Congress 
may  constitutionally  secure  the  benefit  of  it  to  the  people 
by  appropriate  legislation.  .  .  .  Congress  may  restrain  by 
suitable  enactments  the  circulation  as  money  of  any  notes 
not  issued  under  its  own  authority."  The  two  dissenting 
judges  do  not  deny  the  power  of  the  government  to  emit 
bills  of  credit,  but  they  speak  of  them  as  being  "  issued 
under  a  constructive  power  to  issue  bills  of  credit,  as  no 
express  power  is  given  in  the  Constitution."  ^  And  again, 
in  the  case  of  Hepburn  v.  Griswold,^  Chase,  C.  J.,  says: 
"  No  one  questions  the  general  constitutionality  ...  of 
the  legislation  by  which  a  note  currency  has  been  author- 
ized in  recent  years.  The  doubt  is  as  to  the  power  to  declare 
a  particular  class  of  these  notes  to  be  a  legal  tender  in  pay- 
ment of  pre-existing  debts." 

We  are,  therefore,  to  remark,  that  while  the  doctrine  is 
now  established  that  Congress  may  emit  bills  of  credit, 
may  furnish  a  paper  currency,  and  may  prohibit  the  circu- 
lation of  any  currency  but  its  own,  yet,  in  the  debates  of 
the  Convention,  so  far  as  we  know  anything  about  them, 
the  majority  of  the  speakers  thought  that  they  were  prohib- 
iting bills  of  credit  and  paper  money.  They  were  wrong. 
They  talked  as  if  the  striking  out  of  the  words  "  and  emit 
bills  on  the  credit  of  the  United  States  "  were  prohibition ; 
but  it  Avas  not.  Mr.  Gorham's  view  is  now  the  accepted 
one;  the  striking  out  was  the  removal  of  an  express  grant 
of  power,  but  it  was  not  a  prohibition  of  the  power.  It 
had  the  effect  to  leave  the  question  of  power  to  be  settled 
as  it  might  arise,  as  in  the  instance  of  striking  out  the  grant 
of  power  to  give  charters  of  incorporation."*  And  so  as 
regards  the  further  question  of  the  power  to  make  the  cur- 

»  Tb.,  at  p.  555. 
'  lb.  603,  at  p.  619. 

•■'  See  also  the  express  proviso  of  Art.  IV.  Sec.  .3,  as  to  the  Terri- 
tories. 


LEGAL  TENDER  69 

rency  a  legal  tender,  this  act  of  striking  out  the  words 
"  and  emit  bills  on  the  credit  of  the  United  States  "  was 
merely  neutral.  We  have  seen  that  most  of  those  who  took 
part  in  the  debates  of  the  Convention  appear  to  have 
thought  that  if  the  power  of  emitting  bills  of  credit  should 
exist  at  all,  the  power  to  rtiake  them  a  legal  tender  would 
also  exist  if  it  were  not  expressly  prohibited.  Although 
Madison  seems  to  have  conceived  that  dropping  the  power 
to  emit  bills  would  not  wholly  deprive  the  Union  of  that 
power,  while  it  would  leave  it  destitute  of  the  power  to 
make  its  issues  a  tender,  yet,  as  Mr.  Justice  Gray  remarks,^ 
"  he  has  not  explained  why "  he  thought  so.  He  also 
thought  that  there  would  be  no  power  to  issue  them  as  a 
currency,  or  to  establish  any  paper  currency;  which  is  not 
so.  And  he  thought,  too,  that  forbidding  the  issuing  of 
bills  of  credit  to  the  States  was  only  forbidding  such  as 
are  made  a  legal  tender ;  ^  which  was  not  so.  "  The  Con- 
stitution itself,"  said  Marshall,  C.  J.,  in  Craig  v.  The  State 
of  Missouri,^  furnishes  no  countenance  to  this  distinction. 
The  prohibition  (in  the  case  of  the  States)  is  general.  It 
extends  to  all  bills  of  credit,  not  to  bills  of  a  particular 
description." 

II.  But  while  it  is  true  that  no  argument  can  be  drawn 
from  the  action  of  the  Convention  in  dealing  with  the 
power  of  Congress  to  emit  bills  of  credit,  against  its  power 
to  give  the  quality  of  legal  tender  to  its  paper  currency,  yet 
it  may,  of  course,  be  true  for  other  reasons  that  Congress 
has  no  such  power.  This  was  strongly  declared  by  Mr. 
Webster,  in  his  speech  on  the  "  Specie  Circular,"  delivered 
in  the  Senate  of  the  United  States  on  the  21st  of  Decem- 
ber, 1836.  The  debate  related  to  an  order  of  the  Secretary 
of  the  Treasury  to  certain  officials  to  require  the  payment 
of  gold  and  silver  for  public  lands.  Mr.  Webster  said :  * 
"  What  is  meant  by  the  '  constitutional  currency '  about 

»  110  U.  S.,  at  p.  443. 

*  Letter  to  C.  J.  Ingersoll,  Feb.  22,  1831,  4  Ell.  Deb.  608. 
'  4  Pet.  410,  at  p.  434. 

*  Webster's  Works,  IV.  270,  271. 


70  LEGAL  ESSAYS 

which  so  much  is  said  ?  What  species  or  forms  of  currency 
does  the  Constitution  allow,  and  what  does  it  forbid?  It 
is  plain  enough  that  this  depends  on  what  we  understand 
by  currency.  Currency,  in  a  large,  and,  perhaps,  in  a  just 
sense,  includes  not  only  gold,  and  silver,  and  bank  notes, 
but  bills  of  exchange  also.  It  may  include  all  that  adjusts 
exchanges  and  settles  balances  in  the  operations  of  trade 
and  business.  But  if  we  understand  by  currency  the  legal 
money  of  the  country,  and  that  which  constitutes  a  lawful 
tender  for  debts,  and  is  the  statute  measure  of  value,  then, 
undoubtedly,  nothing  is  included  but  gold  and  silver.  Most 
unquestionably  there  is  no  legal  tender,  and  there  can  be 
no  legal  tender,  in  this  country,  under  the  authority  of  this 
government  or  any  other,  but  gold  and  silver,  either  the 
coinage  of  our  own  mints,  or  foreign  coins,  at  rates  regu- 
lated by  Congress.  This  is  a  constitutional  principle  per- 
fectly plain,  and  of  the  very  highest  importance.  The 
States  are  expressly  prohibited  from  making  anything  but 
gold  and  silver  a  tender,  in  payment  of  debts,  and  although 
no  such  express  prohibition  is  applied  to  Congress,  yet  as 
Congress  has  no  power  granted  to  it,  in  this  respect,  but 
to  coin  money  and  to  regulate  the  value  of  foreign  coins,  it 
clearly  has  no  power  to  substitute  paper,  or  anything  else, 
for  coin,  as  a  tender  in  payment  of  debts  and  in  discharge 
of  contracts.  Congress  has  exercised  this  power,  fully,  in 
both  its  branches.  It  has  coined  money,  and  still  coins  it. 
It  has  regulated  the  value  of  foreign  coins,  and  still  regu- 
lates their  value.  The  legal  tender,  therefore,  the  consti- 
tutional standard  of  value,  is  established,  and  cannot  be 
overthrown.  To  overthrow  it,  would  shake  the  whole  sys- 
tem. But,  if  the  Constitution  knows  only  gold  and  silver 
as  a  legal  tender,  does  it  follow  that  the  Constitution  cannot 
tolerate  the  voluntary  circulation  of  bank  notes,  convertible 
into  gold  and  silver  at  the  will  of  the  holder,  as  part  of  the 
actual  money  of  the  country?  Is  a  man  not  only  to  be 
entitled  to  demand  gold  and  silver  for  every  debt,  but  is 
he,  or  should  he  be,  obliged  to  demand  it  in  all  cases?    Is 


LEGAL  TENDER  71 

it,  or  should  government  make  it,  unlawful  to  receive  pay 
in  anything  else?  Such  a  notion  is  too  absurd  to  be  seri- 
ously treated.  The  constitutional  tender  is  the  thing  to 
be  preserved,  and  it  ought  to  be  preserved  sacredly,  under 
all  circumstances.  The  rest  remains  for  judicious  legisla- 
tion by  those  who  have  competent  authority." 

That  is  a  very  emphatic  expression  of  opinion  on  the 
part  of  Mr.  Webster,  and  it  is  often  cited.  He  puts  this 
doctrine  as  resulting  from  the  fact  that  Congress,  while 
not  expressly  prohibited,  like  the  States,  yet  has  no  grant 
of  power  "  in  this  respect,  but  to  coin  money  and  regulate 
the  value  of  foreign  coins."  ^  If  this  ground  be  thought, 
as  I  venture  to  think  it,  not  a  very  strong  one,  it  must  be 
remembered  that  Mr.  Webster  was  not,  just  then,  con- 
cerned with  any  careful  or  affirmative  discussion  of  this 
topic;  he  was  only  making  a  passing  concession  to  his 
opponents.  His  line  of  thought  was  this :  "  You  talk  of 
'  paper  money '  as  unconstitutional ;  and  of  gold  and  silver 
as  the  only  '  constitutional  currency.'  What  is  meant  by 
'  constitutional  currency  ?  '  If  you  mean  that  nothing  but 
coin  can  be  a  legal  tender,  I  agree;  but  if  you  mean  that 
it  is  not  constitutional  to  have  a  paper  currency  at  all,  I 
deny  it."  That  is  to  say,  he  conceded  a  point,  in  passing, 
without  at  all  undertaking  to  weigh  carefully  his  language 
or  his  reasons  as  regards  a  matter  upon  which  he  assumes 
that  all  whom  he  is  addressing  think  alike.  Still  he  does 
give  a  reason;  (a)  there  can  be  no  legal  tender  but  coin, 
as  resulting  from  the  action  of  a  State,  because  the  States 
are  expressly  prohibited  from  making  anything  but  gold 
and  silver  a  tender  in  payment  of  debts;  (b)  there  can  be 
no  legal  tender  but  coin  resulting  from  the  action  of  Con- 
gress, because,  though  not  expressly  prohibited,  "  as  Con- 
gress has  no  power  granted  to  it  in  this  respect,  but  to  coin 
money  and  regulate  the  value  of  foreign  coins,  it  clearly  has 

'  Mr.  Webster  is,  of  course,  a  little  inaccurate  here.  Congress  may 
also  "  regulate  the  value  "  of  its  own  coin.  And  it  is  an  error  to  say 
that  Congress  can  malce  only  gold  and  silver  a  tender. 


72  LEGAL  ESSAYS 

no  power  to  substitute  paper,  or  anything  else,  for  coin,  as 
a  tender  in  payment  of  debts  and  in  discharge  of  contracts." 

Now,  as  regards  these  statements  of  Mr.  Webster,  there 
is,  in  the  first  place,  no  difficulty  in  assenting  to  what  he 
says  about  the  power  of  the  States.  But  as  regards  Con- 
gress, his  conclusion  is  by  no  means  so  obvious.  When  it 
is  said  that  Congress  has  no  other  power  granted  to  it,  in 
respect  to  legal  tender,  than  that  which  is  mentioned,  if 
it  is  meant  that  no  such  power  is  granted  by  implication 
elsewhere,  there  is  a  begging  of  the  question  which  we  are 
discussing,  and  of  which  more  will  be  said  later  on.  If  it 
is  meant  that  there  is  no  other  express  grant  of  the  power, 
the  statement  is  objectionable  in  its  assumption  that  there 
is  here  any  express  grant  of  power  to  establish  a  legal 
tender ;  although,  it  is  to  be  admitted  that  there  is  not  any 
express  grant  of  it  elsewhere. 

The  argument  as  regards  this  last  point,  which  Mr. 
Webster's  expressions  suggest,  has  been  forcibly  put  by  Mr. 
Holmes  (now  Mr.  Justice  Holmes,  of  the  Supreme  Judicial 
Court  of  Massachusetts),  thus:  "It  is  hard  to  see  how  a 
limited  power,  which  is  expressly  given,  and  which  does 
not  come  up  to  a  desired  height,  can  be  enlarged  as  an 
incident  to  some  other  express  power;  an  express  grant 
seems  to  exclude  implications :  the  power  to  coin  money 
means  to  strike  off  metallic  medals  (coins)  and  to  make 
those  medals  legal  tender  (money).  If  the  Constitution 
says  expressly  that  Congress  shall  have  power  to  make 
metallic  legal  tender,  how  can  it  be  taken  to  say  by  impli- 
cation that  Congress  shall  have  power  to  make  paper  legal 
tender?  "1  In  another  place  ^  Mr.  Holmes  again  uses 
this  argument  and  declares  it  to  be,  in  his  opinion,  unan- 
swerable. Mr.  Justice  Field,  in  the  Legal  Tender  Cases  ^ 
presses  the  same  reasoning,  in  his  dissenting  opinion,  and 
adds:    "When  the  Constitution  says  that  Congress  shall 

»  In  1  Kent's  Com.  (12th  ed.)  254  (1873)  ;  and  also,  before  that,  In 
4  Am.  Law  Rev.  768  (,TuIy,  1870). 
*  7  Am.  Law  Rev.  147  (1872). 
»  12  Wall,  651   (Dec.  1870). 


LEGAL  TENDER  73 

have  the  power  to  make  metallic  coins  legal  tender,  it 
declares  in  effect  that  it  shall  make  nothing  else  such 
tender."  To  which  Mr.  Holmes  adds,  "We  should  prefer 
to  say,  it  excludes  the  implication  of  a  grant  of  more 
extensive  powers.'^ 

This  reasoning  seems  to  me  obviously  defective. 

(1)  It  does  not  take  the  language  of  the  Constitution  as 
it  stands.  It  puts  a  construction  on  it,  viz. :  that  money 
and  legal  tender  are  here  synonymous;  and  reasons  as  if 
this  part  of  the  Constitution  contained  the  expression  "  legal 
tender."  The  Constitution  does  not,  in  terms,  say  that 
Congress  may  make  coin  a  legal  tender,  although,  truly, 
the  power  is  not  wanting ;  but  it  says  nothing  about  legal 
tender.  The  argument,  then,  that  the  express  grant  of 
power  to  make  coin  a  tender  excludes  the  implication  of  a 
power  to  make  anything  else  a  tender,  is  inapplicable  to  the 
actual  text  of  the  Constitution. 

(2)  This  construction  appears  to  be  wrong.  The  Con- 
stitution, in  the  coinage  clause,  simply  confers  on  Congress 
one  of  the  usual  functions  of  a  government,  that  of  manu- 
facturing metallic  money  and  regulating  the  value  of  such 
money.  As  to  what  shall  be  done  with  it  when  it  is  manu- 
factured and  its  value  regulated,  the  Constitution  says 
nothing.  I  cannot  doubt  that  the  word  money  in  the  coin- 
age clause  is  limited  to  metallic  money.^  And  Congress 
may  do  with  it  and  about  it,  and  may  abstain  wholly 
or  in  part  from  doing,  what  is  ordinarily  done  by  govern- 
ments when  they  coin  money ;  and  so  may  make  it  a  legal 
tender.  But  money  is  not  necessarily  a  tender  in  discharge 
of  contracts  or  debts ;  with  us,  foreign  mone}'^  is  not ;  ^ 
some  domestic  money  is  not;  for  example,  trade  dollars,^ 
silver  coins,  under  the  denomination  of  one  dollar,  for 
amounts  over  ten  dollars,^  copper  and  other  minor  coins, 

^  But  see  Mr.  McMurtrie's  very  able  "  Observations  on  Mr.  George 
Bancroft's  Plea  for  the  Constitution." 

*  U.  S.  Rev.  St.  s.  3584. 

»  1  Suppl.  Rev.  St.  p.  254. 

♦  76.  p.  488. 


74  LEGAL  ESSAYS 

for  amounts  over  twenty-five  cents.^  Undoubtedly  the 
Legislature  may  make  its  coin  a  legal  tender  or  not,  as  it 
pleases,  and  to  such  a  partial  extent,  and  with  such  quali- 
fications as  it  pleases.  In  law,  whatever  is  legal  tender  is 
money;  but  it  is  not  true  that  whatever  is  money  is  legal 
tender.  The  clause  of  the  Constitution,  therefore,  which 
provides  for  the  coinage  of  money  is  not  one  which,  by 
any  necessary  construction,  says  anything  about  legal  ten- 
der. While,  indeed,  it  is  clear,  having  regard  to  the  nature 
and  ordinary  use  of  coined  money,  to  the  ordinary  powers 
of  governments,  to  the  control  over  this  whole  subject 
which  is  given  to  Congress  by  the  Constitution,  and  to 
its  silence  as  touching  any  restrictions  regarding  the  power 
to  make  the  money,  when  coined,  a  legal  tender,  —  that 
Congress  has  full  power  to  give  or  withhold  this  quality 
as  regards  its  coined  money,  yet  this  power  is  inferential, 
and  not  express.  The  real  argument,  then,  from  the  clauses 
relied  upon  by  the  learned  persons  above  quoted,  is  not,  as 
it  is  put;  (a)  Congress  has  an  express  power  to  make  coin 
a  legal  tender;  and  so,  (h)  an  implied  power  to  make 
something  else  a  legal  tender  is  excluded.  But  it  cannot 
be  put  higher  than  this :  (a)  Congress  has  an  express  power 
to  coin  money;  (6)  in  that,  is  implied  a  power  to  make  it 
a  legal  tender;  and  (c)  this  implied  power  excludes  an 
implied  power  to  make  anything  else  a  legal  tender.  That 
argument  is  not  a  strong  one. 

The  power  of  Congress  to  make  and  put  in  circulation 
a  paper  currency,  a  paper  medium  of  exchange,  what  Mr. 
Webster,  in  common  with  Adam  Smith  and  Hamilton,  and 
many  another,  calls  "  paper  money,"  is  now  established. 
The  express  power  to  coin  money  does  not  exclude  the 
implication  of  that.  Why,  then,  should  the  implied  power 
of  making  coined  money  a  legal  tender  exclude  an  implied 
power  of  making  "  paper  money  "  a  legal  tender  ?  As  the 
power  to   coin  money,   and   so  to  furnish   a   medium   of 

»  U.  S.  Rev.  St.  s.  3587. 


LEGAL  TENDER  75 

exchange  does  not  exclude  an  implied  power  to  furnish 
another  medium  of  exchange,  a  paper  currency,  "  paper 
money,"  —  so  neither  in  its  expression  nor  its  implication 
does  it  exclude  the  implied  power  to  make  this  other 
medium  of  exchange  a  legal  tender. 

But  it  may  be  thought  that  I  have  gone  too  far  in  say- 
ing, as  regards  metallic  money,  that  the  terms  money  and 
legal  tender  are  not  convertible  terms.  It  is  not  forgotten 
that  distinguished  persons  have  held  the  contrary  opinion. 
Mill  has  said :  "  It  seems  to  me  to  be  an  essential  part 
of  the  idea  of  money  that  it  be  legal  tender."  ^  A  distin- 
guished French  writer.  Say,  has  remarked :  "  The  copper 
coin  and  that  of  base  metal  are  not,  strictly  speaking, 
money;  for  debts  cannot  be  legally  tendered  in  this  coin, 
except  such  fractional  sums  as  are  too  minute  to  be  paid 
in  gold  or  silver."  ^  Many  other  persons  have  held  this 
as  a  doctrine  of  political  economy,  although  it  is  a  view 
which  is  by  no  means  universally  accepted.^  In  law, 
also,  it  is  to  be  admitted  that,  generally,  in  the  payment 
of  debts  and  obligations,  and  on  the  side  of  penal  law,  as 
in  a  statute  relating  to  the  embezzlement  of  money,  only 
what  is  a  legal  tender  is  money."*  But  it  must  also  be 
remembered  that  the  Constitution,  in  giving  to  Congress 
the  power  to  coin  money,  is  not,  just  then,  concerned  with 
the  technicalities  of  law  or  political  economy;  it  is  dis- 
posing of  one  of  the  "jura  majestatis"  in  brief  and  gen- 
eral terms,  in  phrases  which  are  the  language  of  statesmen. 
The  terms  used  in  this  place  import  the  manufacture  of 
metallic  coin,  and  do  not  comprehend  the  preparation  of 
paper.  But  to  say  that  they  import  no  other  metallic  coin 
than  that  which  is  made  a  legal  tender  seems  to  be  clearly 
an  error.     Even  in  strict  law  the  term  money  sometimes 


'  Principles  of  Pol.  Econ.,  Book  Hi.  c.  xii.  s.  6. 

-  Pol.  Econ.,  Book  i.  c.  xxi.  s.  10. 

'  See  especially  Francis  A.  Walker's  acute  and  searching  book  on 
"  Money." 

*  2  Bish.  Crim.  Law,  s.  357,  Title  Embezzlement,  "  Money  means,  as 
a  general  proposition,  what  is  legal  tender,  and  nothing  else." 


76  LEGAL   ESSAYS 

covers  things  other  than  legal  tender,  as  in  the  case  of  a 
gift  of  "  money "  in  a  will,  which  includes  bank  notes.^ 
Of  bank  notes,  also,  Lord  Mansfield  said,  in  1758,  in  Miller 
V.  Eace,2  in  an  action  of  trover  for  a  bank  note :  "  They 
.  .  ,  are  treated  as  money,  as  cash,  in  the  ordinary  course 
and  transaction  of  business,  by  the  general  consent  of  man- 
kind. .  .  .  They  are  as  much  money  as  guineas  themselves 
are,  or  any  other  current  coin  that  is  used  in  common  pay- 
ments as  money  or  cash."  Of  the  guinea,  first  coined  in 
1664  and  not  made  a  legal  tender  till  1717,  Holt,  C.  J., 
said,  in  1694,  in  St.  Leiger  v.  Pope :  ^  "Do  you  think  that 
it  is  not  higli  treason  to  counterfeit  guineas?  A  guinea  is 
the  current  coin  of  the  kingdom,  and  we  are  to  take  notice 
of  it."  And  then,  above  all,  consider  the  usage  of  the  time 
when  the  Constitution  was  made.  Adam  Smith,  of  whose 
great  work  on  "  The  Wealth  of  Nations,"  the  first  edition 
was  published  in  1776,  and  the  last,  of  those  during  his  life- 
time, in  1786,  remarks:  "Originally,  in  all  countries,  I 
believe,  a  legal  tender  of  payment  could  be  made  only  in 
the  coin  of  that  metal  which  was  peculiarly  considered  as 
the  standard  or  measure  of  value.  In  England,  gold  was 
not  considered  as  a  legal  tender  for  a  long  time  after  it 
was  coined  into  money."  ^  I  am  not  concerned  with  the 
precise  accuracy  of  this  statement  in  certain  points  of 
fact,^  but  only  with  its  use  of  terms.  Dr.  Johnson,  whose 
dictionary  received  his  last  corrections  in  the  edition  of 
1773,  defined  money,  with  no  reference  to  the  idea  of 
tender,  simply  and  only  as  "  metal,  coined  for  the  purposes 
of  commerce."  Hamilton,  in  1790,  in  his  opinion  given 
to  Washington,  on  the  constitutionality  of  the  bill  to  in- 
corporate a  United  States  Bank,^  said :  "  The  Bank  will 
be  conducive  to  the  creation  of  a  medium  of  exchange  be- 

>  2  Williams  Ex.,  Pt.  3,  Book  iii.  c.  ii.  s.  4. 

^  1  Burr.  457. 

^  5  Mod.,  at  p.  7. 

*  Book  i.  c.  V. 

»  See  Coins  of  the  Realm,  by  the  Earl  of  Liverpool,  143. 

«  Lodge's  Works  of  Alexander  Hamilton,  ill.  213. 


LEGAL  TENDER  77 

tween  the  States.  .  .  .  Money  is  the  very  hinge  on  which 
commerce  turns.  And  this  does  not  merely  mean  gold 
and  silver;  many  other  things  have  served  the  purpose  of 
money  with  different  degrees  of  utility.  Paper  has  been 
extensively  employed."  ^ 

Observe,  also,  the  sense  of  the  term  as  used  in  our  early 
statutes.  In  the  first  Coinage  Act,  of  April  2,  1793,2  ^^ 
Sec.  9,  ten  coins,  from  eagles  down  to  cents  and  half  cents, 
are  directed  to  be  struck  at  the  mint,  and  the  value  of  them 
is  regulated.  Here  appears  to  be  the  full  exercise  of  the 
express  power  given  in  the  Constitution,  "  to  coin  money 
and  regulate  the  value  thereof  " ;  and  it  will  be  remarked 
that  it  is  exercised  in  regard  to  the  copper  coins  no  less 
than  the  gold  and  silver  ones.  In  a  later  section  (Sec. 
16)  the  gold  and  silver  coins,  and  these  only,  are  made 
"  a  lawful  tender  in  all  payments  whatsoever."  But  can 
there  be  any  doubt  that  the  two  copper  coins  were  re- 
garded as  "  money "  ?  If  so,  the  doubt  will  vanish  on 
looking  at  the  Act  of  May  8,  1792,  to  "provide  for  a 
copper  coinage,"  ^  which,  in  furtherance  of  the  previous 
Act,  provided,  among  other  things,  that  the  cents  and 
half  cents  were  to  be  paid  into  the  treasury,  "  thence  to 
issue  into  circulation,"  and  that  after  a  fixed  time  "  no 
copper  coins  or  pieces  whatsoever,  except  the  said  cents 
and  half  cents,  shall  pass  current  as  money,"  and  also 
enacted  forfeiture  and  a  penalty  for  paying  or  offering  any 
other  copper  coins  but  these;  but  it  said  nothing  of  their 
being  a  tender.  It  was,  I  believe,  more  than  seventy  years 
before  copper  coin  had  the  quality  of  legal  tender.^  As 
regards  our  later  legislation,  in  the  Eevised  Statutes  of 
the  United  States  (Sec.  3513),  the  trade  dollar  is  classed 

^  It  is  needless  to  say  that  Hamilton  was  not  liere  advocating  making 
the  paper  a  legal  tender. 

==  1  U.  S.  St.  at  Large,  246. 

3  1  U.  S.  St.  at  Large,  283. 

*  Upton's  Money  in  Politics,  259.  Can  there  (to  adopt  the  sugges- 
tion of  a  learned  friend)  be  any  doubt,  if  a  State  should  issue  a  copper 
coinage  like  this,  that  the  proceedings  would  be  unconstitutional,  as 
coining  money  ? 


78  LEGAL  ESSAYS 

among  "the  silver  coins  of  the  United  States";  and  in 
Sec.  3586  it  is,  with  the  rest,  made  a  legal  tender  for 
amounts  not  over  five  dollars.  By  a  statute  of  1876,^ 
the  quality  of  legal  tender  is  taken  away  from  this  "  silver 
coin  of  the  United  States."  Does  it  thereby  cease  to  be 
money?  The  case  of  the  trade  dollar  is  peculiar.  But 
imagine  the  government  to  coin  some  very  large  gold  piece 
for  supposed  reasons  of  convenience  in  trade,  without 
making  it  a  legal  tender;  this,  as  I  am  told,  was  formerly 
done  in  Germany;  is  such  a  coin,  therefore,  not  money? 
Suppose  the  government,  for  like  reasons,  to  manufacture 
coins,  of  exactly  the  same  size  and  value  as  those  of  Eng- 
land, or  Russia,  or  Holland,  not  a  legal  tender,  but  sup- 
posed to  be  serviceable  in  foreign  trade,  would  they  not 
be  money? 2  Suppose  such  coins  to  be  made  for  use  in 
China  as  being  readily  taken  there,  would  the  case  be 
essentially  different?  And,  finally,  suppose  that  Congress, 
instead  of  repealing  that  part  only  of  Title  39  of  the 
Revised  Statutes  which  related  to  the  trade  dollar  had  re- 
pealed all  of  it ;  it  is  the  seven  sections  of  this  title,  under 
the  separate  heading  of  "  Legal  Tender,"  which  give  that 
quality  to  the  coins  of  the  United  States;  would  all  our 
coins,  manufactured  as  they  are  under  the  provisions  of 
the  separate  Title  38,  cease  to  be  money?  It  seems  clear 
that  they  would  not;  and  we  must  conclude  that  the 
term  money,  as  used  in  the  coinage  clause  of  the  Consti- 
tution, has  that  large  and  universal  sense  in  which  it 
is  used  in  the  reasonings  of  Aristotle,^  of  Adam  Smith, 
and  of  Hamilton,  viz. :  that  of  a  common  metallic  medium 
of  exchange,  "  the  common  measure  of  all  commerce,"  * 


»  1  Suppl.  R.  S.  U.  S.  254. 

'   [Cf.  Bronson  v.  Rodes,  7  Wall.  229,  250.1 

'  Nlcom.  Eth.,  Bk.  v.  5.  "  For  this  purpose  money  was  invented,  and 
serves  as  a  medium  (nitrov,  mean,  or  means)  of  exchange,  for  by  It  we 
can  measure  everything.  .  .  .  Money  is,  indeed,  subject  to  the  same  con- 
ditions as  other  things ;  its  value  is  not  always  the  same,  but  still  it 
tends  to  be  more  constant  than  anything  else,"  etc.  Translation  by  P.  H. 
Peters.    London,  1881. 

♦  1  Hale's  P.  C.  184. 


LEGAL  TENDER  79 

And,  finally,  before  leaving  this  argument  from  the 
supposed  express  power  in  the  coinage  clause,  it  may  be 
added,  as  was  said  before,  that  this  argument  would  equally 
apply  if  the  Constitution  had  retained  the  express  clause 
giving  power  "  to  emit  bills  on  the  credit  of  the  United 
States."  It  might  still  have  been  said  that  the  implica- 
tion of  a  power  to  give  these  bills  the  quality  of  legal  tender 
was  excluded  by  the  coinage  change.  Yet  the  evident 
understanding  of  most  of  those  who  took  part  in  the 
debates  was,  that  if  the  power  to  emit  bills  was  given  it 
would  carry  with  it  the  power  to  make  them  a  tender, 
unless  that  power  was  expressly  prohibited.  There  can 
be  no  doubt  as  to  their  understanding  of  that.  The  coin- 
age clause  was  not  even  alluded  to.  We  have,  then,  in  a 
way,  the  authority  of  these  framers  of  the  Constitution 
against  the  argument  that  the  coinage  clause  excluded  the 
implication  of  a  power  to  make  paper  a  legal  tender. 

III.  But  there  are  other  grounds  on  which  the  power 
now  in  question  is  denied.  It  is  said  that  it  is  not  neces- 
sary and  proper  to  the  end  of  carrying  out  any  express 
power  given  to  Congress,  and  that  it  is  inconsistent  with 
the  letter  and  spirit  of  the  Constitution.  Of  these  argu- 
ments an  article  in  the  "  American  Law  Eeview,"  ^  under- 
stood to  have  been  written  by  Mr.  Holmes,  whose  general 
contention  they  are  put  forward  to  support,  has  expressed 
a  slighting  opinion.  "  The  case  of  Hepburn  v.  Griswold," 
he  says,  "(8  Wall.  603),  was  argued  very  much  on  the 
question  whether  the  Legal  Tender  Act  was  a  necessary 
and  proper  means  of  carrying  out  some  of  the  powers  ex- 
pressly given  to  Congress  .  .  .  and  the  case  presented  the 
curious  spectacle  of  the  Supreme  Court  reversing  the  de- 
termination of  Congress  on  a  point  of  political  economy." 
And,  after  referring  to  the  later  decision,  in  12  Wall. 
457,  and  expressing  the  opinion  already  referred  to,  that 
the   argument  drawn   from   the  coinage  clause  is   unan- 

1  Vol.  vii.  p.  146. 


80  LEGAL  ESSAYS 

swerable  to  show  that  there  is  no  power  to  make  paper  a 
legal  tender,  it  is  added:  "Judges  Strong  and  Bradley 
are  more  successful,  to  our  mind,  in  meeting  the  shadowy 
argument  drawn  from  the  spirit  of  the  Constitution  as 
to  impairing  the  obligations  of  contract,  etc.,  than  in  over- 
throwing this.  Less  attention  is  given  than  in  Hepburn  v. 
Griswold  to  the  fitness  of  the  legal  tender  acts  to  accom- 
plish their  ends,  which  we  must  think  a  purely  legislative 
question,  in  the  absence  of  an  obvious  fraud  on  the 
Constitution." 

This  view  of  the  arguments  alluded  to  appears  to  be  a 
sound  one.  It  is  said  to  be  inconsistent  with  the  spirit 
of  the  Constitution  to  make  paper  a  legal  tender  because 
it  is  unjust ;  and  it  is  pointed  out  that  a  great  and  avowed 
purpose  of  the  Constitution  was  the  establishment  of  jus- 
tice.^ That  is  an  argument  which  has  often  been  re- 
peated, but  it  is  of  very  slight  importance.  I  do  not  mean 
that  it  is  of  slight  importance  to  do  an  unjust  thing;  that 
is  never  a  matter  of  small  importance.  But  we  are  con- 
sidering the  value  of  arguments,  and  of  arguments  for  the 
judicial  setting  aside  of  legislation ;  and  T  mean  that  this 
argument,  as  one  justifying  the  declaration  that  a  legis- 
lative act  is  void,  is  a  slight  one.  The  preamble  of  the 
Constitution  in  saying  that  its  purpose  is  "  to  establish 
justice,"  etc.,  is  making  a  large  preliminary  declaration 
relating  to  the  total  aim  of  the  instrument  as  a  whole. 
If  the  question  were  about  legislation  reducing  the  duty 
on  wool,  and  it  should  be  argued  in  a  judicial  opinion 
that  the  law  is  contrary  to  the  spirit  of  the  Constitution, 
because  it  is  the  aim  of  that  instrument  "  to  form  a  more 
perfect  union,"  while  this  law  is  necessarily  unsatisfactory 
to  the  people  of  a  certain  section  of  the  Union,  and  tends 
to  alienate  them  from  it,  —  that  kind  of  reasoning  would 
be  instantly  felt  to  be  out  of  place.  It  seems,  at  best, 
to  belong  to  legislative,   rather  than   judicial   discussion. 

'  8  Wall.,  622.  per  Chase,  C.  .T. 


LEGAL  TENDER  81 

An  answer  to  this  sort  of  argument  may  be  collected  from 
an  important  early  case,^  which  held  that  Congress  might 
constitutionally  give  the  government  priority  over  other 
creditors;  and,  therefore,  that  a  law  could  not  be  held 
void  which  provided  that  where  any  revenue  officer,  or  other 
person,  should  hereafter  become  indebted  to  the  United 
States,  and  then  insolvent,  the  debt  due  to  the  United 
States  should  be  satisfied  first,  without  limiting  this  post- 
ponement of  private  creditors  to  the  case  of  such  as  should 
become  creditors  after  the  passage  of  the  law.  Mr.  Jus- 
tice Washington  described  this  law,  if  interpreted  as  the 
Court  did  interpret  and  sustain  it,^  as  "  productive  of 
the  most  cruel  injustice  to  individuals,"  and  tending  "  to 
destroy,  more  than  any  other  act  I  can  imagine,  all  con- 
fidence between  man  and  man."  He  himself  found  it 
possible  to  interpret  the  law  as  applying  only  to  persons 
accountable  to  the  government,  and  so  as  not  applicable 
to  this  case;  and  he  therefore  dissented  from  the  opinion 
of  the  Court.  But  he  admitted  the  power  of  Congress  to 
go  further  if  it  saw  fit :  "  The  sovereign  may  in  the  exer- 
cise of  his  powers  secure  to  himself  this  exclusive  privilege 
of  being  preferred  to  the  citizens ;  but  this  is  no  evidence 
that  the  claim  is  sanctioned  by  the  claims  of  immutable 
justice.  If  the  right  is  asserted  individuals  must  submit," 
etc.  And  the  Court  (Marshall,  C.  J.),  interpreting  it  to 
cover  all  debts,  said :  "  The  power  is  not  prohibited.  But 
it  is  said,  and  it  is  true,  it  must  appear  to  be  granted. 
It  is  so  under  the  power  to  make  all  laws  necessary  and 
proper  to  carry  into  execution  the  powers  vested.  It  need 
not  be  indispensable ;  Congress  may  use  any  means  which 
are,  in  fact,  conducive  to  the  exercise  of  any  powers  granted 
by  the  Constitution.  It  has  the  power  to  pay  the  debts 
of  the  Union,  and  it  must  be  authorized  to  use  the  means 
which  appear  to  itself  most  eligible  to  effect  that  object." 
But,  again,  apart  from  the  phrases  of  the  preamble  of 

>   TT.  S.  V.  Fisher,  2  Cranch,  358  (1804). 
-  U.  S.  V.  Fisher,  2  Cranch,  p.  402. 
P. 


82  LEGAL  ESSAYS 

the  Constitution,  it  is  said  that  the  spirit  of  the  Consti- 
tution as  regards  contracts  is  shown  by  the  contemporane- 
ous provisions  which  were  made  by  the  Congress  of  the 
Confederation  sitting  at  the  time  of  the  convention,  in 
framing  the  ordinance  for  the  North-western  Territory/ 
viz.,  that  no  law  should  be  passed  there  which  interfered 
with  private  contracts,  and  also  by  the  provisions  of  the 
Constitution  prohibiting  States  from  impairing  the  obliga- 
tions of  contracts.  And  so  the  Court  (Chase,  C.  J.)  says: 
"  A  law  not  made  in  pursuance  of  an  express  power,  for 
example,  to  pass  bankruptcy  laws  which  necessarily  and 
by  its  direct  operation  impairs  the  obligation  of  contracts, 
is  inconsistent  with  the  spirit  of  the  Constitution."  Like 
arguments  are  drawn  from  the  fifth  amendment,  prohibit- 
ing the  taking  of  private  property  for  public  purposes 
without  compensation,  and  the  taking  of  property  without 
due  process  of  law.  Indeed,  this  last  provision  is  regarded 
as  "  a  direct  prohibition  "  of  the  'legislation  now  in  ques- 
tion; and  so  the  reasoning,  as  regards  this  clause,  is, 
that  the  legal-tender  legislation  is  contrary  not  merely 
to  the  spirit  of  the  Constitution,  but  to  the  letter 
of  it. 

This  argument  discriminates  between  laws  made  in  pur- 
suance of  express  powers  and  others.  Why  is  this?  If 
the  argument  is  not  good  as  regards  express  powers,  which 
appears  to  be  conceded,  why  should  it  be  good  as  regards 
those  that  are  implied  or  auxiliary?  If  the  implied  power 
be  otherwise  plain  it  is  difficult  to  see  why  it  should  be 
treated  any  differently  as  regards  the  exercise  of  it,  or 
its  relation  to  the  spirit  of  the  Constitution,  from  any 
other  power.  As  regards  the  existence  of  any  alleged 
power,  whether  a  main  or  auxiliary  one,  whether  express, 
implied,  constructive,  inferential,  or  what  not,  the  same 
questions  are  to  be  asked,  viz. :  Is  it,  upon  the  fair  con- 
struction of  the  instrument,  given?     If  it  is  given,  how 

1  Chase,  C.  J.,  In  Hepburn  v.  Griswold,  8  Wall.  622. 


LEGAL  TENDER  83 

far,  if  at  all,  is  it  qualified  ?  ^  In  the  preference  case,^ 
the  Court  saw  no  sufficient  reason  for  denying  the  exist- 
ence of  an  implied  power  on  the  ground  of  injustice  in 
the  exercise  of  it,  as  impairing  the  obligation  of  contracts 
or  taking  away  private  property  without  compensation  or 
due  process  of  law;  although  the  direct  and  inevitable 
operation  of  the  law  was  to  deprive  the  debtor  of  the 
ability  to  pay  a  part  of  his  debts,  and  so  to  deprive  the 
creditor  of  his  property.  As  regards  the  legal-tender  law, 
it  is  not  true,  in  any  other  sense  than  it  was  true  in 
Fishers  case,  that  there  is  the  direct  and  inevitable  injury 
spoken  of  by  the  Chief  Justice  in  Hepburn  v.  Griswold.^ 
If  the  notes  are  convertible  and  sufficiently  secured,  the 
legal-tender  quality  need  not  produce  injury;  that  is  the 
case  to-day  with  our  legal-tender  notes;  there  is  no  direct 
and  inevitable  injury. 

IV.  Leaving  now  the  special  consideration  of  arguments 
against  the  power  in  question,  it  is  time  to  give,  affirma- 
tively, the  reasons  for  believing  that  making  the  notes  of 
the  Government  a  legal  tender  for  debts  may  fairly  be 
held  necessary  and  proper  for  the  exercise  of  some  of  the 
powers  granted  in  the  Constitution.^ 

^  Juilliard  v.  Greenman,  110  U.  S.,  at  p.  448 ;  Legal  Tender  Cases, 
12  Wall.,  at  p.  550.  per  Strong,  J. 

2  U.  S.  V.  Fisher,  2  Cranch,  358. 

'  8  Wall.,  at  p.  623. 

*  It  is  not  necessary  to  emphasize  the  point  in  regard  to  this  ques- 
tion, but  it  Is  worth  remarking,  as  we  pass,  that  courts,  in  declining  to 
pronounce  a  legislative  act  unconstitutional,  are  not,  in  reality,  required 
to  hold  any  distinct,  affirmative  opinion  that  the  measure  is  constitu- 
tional. They  are  engaged  in  revising  the  action  of  another  department 
of  the  government,  and  their  duty  is  indicated  in  Cooley's  phrase  :  "  To 
be  in  doubt,  therefore,  is  to  be  resolved,  and  the  resolution  must  support 
the  law."  (Princ.  Const.  Law,  153.)  It  is  still  more  plainly  indicated 
by  such  a  statement  as  that  of  Mr.  Justice  Thomas  (Opinion  of  the 
Justices,  8  Gray,  p.  21)  when  he  sustains  the  constitutionality  of  an  act 
of  the  legislature  "  upon  the  single  ground  that  the  act  is  not  so  clearly 
unconstitutional,  its  invalidity  so  free  from  reasonable  doubt,  as  to  make 
it  the  duty  of  the  judicial  department,  in  view  of  the  vast  interests  in- 
volved in  the  result,  to  declare  it  void."  It  is  not  a  difficult  inference 
from  these  expressions  that  the  judge's  own  opinion  was,  that  this  act 
was,  in  fact,  not  warranted  by  the  Constitution.  To  the  like  effect  is  the 
very  common  expression  of  the  judges  that,  in  order  to  justify  the  judi- 
cial declaration  that  legislation  is  unconstitutional,  the  fact  must  be 
plain  "  beyond  a  reasonable  doubt."     Ogden  v.  Saunders,  12  Wheat.,  at 


84  LEGAL  ESSAYS 

1.  This  power  is  really  involved  in  the  power  of  issuing 
or  authorizing  a  paper  currency.  That  power  may  be  de- 
rived from  the  power  to  regulate  commerce,  as  Hamilton 
seems  to  have  derived  it,  in  urging  upon  Washington  the 
signing  of  the  Bank  Act,  at  the  outset  of  the  government.^ 
"  The  bank,"  he  says,  "  will  be  conducive  to  the  creation 
of  a  medium  of  exchange  between  the  States  and  the  keep- 
ing up  of  a  full  circulation.  .  .  .  Money  is  the  very  hinge 
on  which  commerce  turns."  And  he  adds  that  the  whole 
or  the  greatest  part  of  the  coin  in  the  country  may  be 
carried  out  of  it.  Years  before  2  Hamilton  had  condemned 
as  visionary  the  notion  that  coin  was  adequate  to  the  pur- 
poses of  currency.  This  power  of  providing  a  paper  cur- 
rency is  variously  accounted  for.  In  the  Veazie  Bank 
case,3  the  Court,  while  declaring  it,  did  not  state  where 
it  was  found.  Webster  derived  it  from  the  coinage  clauses 
of  the  Constitution,  including  the  prohibition  on  the 
States.^     Webster  also  found  it  in  the  power  to  regulate 

p.  270,  per  Washington,  J.  ;  Sinking  Fund  Cases,  99  U.  S.,  at  p.  718, 
per  Waite,  C.  J. ;  Wellington,  Pet'r.,  16  Pick.,  at  p.  95,  per  Shaw,  C.  J. ; 
People  V.  Sup.  of  Orange,  17  N.  Y.,  at  p.  241,  per  Harris,  J. ;  Cooley, 
Const.  Lim.  183.  See  Von  Hoist,  Const.  Law  of  U.  S.  64,  65  (Chicago, 
1887).  The  remark  that  the  Constitution  is  a  law,  and,  therefore,  can 
have  but  one  allowable  interpretation,  and  that  one  the  interpretation 
given  to  it  by  the  Court,  overlooks  the  essential  peculiarity  of  that  form 
of  law  which  we  call  a  Constitution.  See  a  letter  to  the  "  Nation  "  of 
April  10,  1884,  in  which  the  present  writer  has  enlarged  upon  this  topic. 
One  must  not,  to  be  sure,  emphasize  too  heavily  a  single  expression,  like 
this  of  a  "  reasonable  doubt."  But  an  analysis  of  the  reasons  for  the 
general  principles  adopted  by  courts  in  passing  upon  the  constitution- 
ality of  legislation  wili  be  found  to  lead  to  very  important  conclusions ; 
and  these  are  well  intimated  by  that  expression  and  its  connotation  in 
other  parts  of  the  law. 

>  Lodge's  Works  of  Hamilton,  lii.  213. 

"  In  1781,  Letter  to  R.  Morris,  ib.  102. 

»  8  Wall.  533. 

*  "  The  exclusive  power  of  regulating  the  metallic  currency  of  the 
country  would  seem  necessarily  to  imply,  or,  more  properly,  to  include, 
as  part  of  itself,  a  power  to  decide  how  far  that  currency  shoiild  be  ex- 
clusive, how  far  any  substitute  should  interfere  with  it.  and  what  that 
substitute  should  be."  —  Works,  ill.  395.  "  Let  me  ask  whether  Con- 
gress, if  it  had  not  the  power  of  coining  money,  and  of  regulating  the 
value  of  foreign  coins,  could  create  a  bank,  with  the  power  to  circulate 
bills.  For  one,  I  think  it  would  be  difficult  to  make  that  out."  Ib.  413. 
See  Legal  Tender  Cases,  12  Wall.,  at  p.  545,  per  Strong,  J.  Also  "  Ob- 
servations on  Mr.  George  Bancroft's  Plea  for  the  Constitution,"  by 
Richard  C.  McMurtrie  (Philadelphia,  1886),  pp.  16-24. 


LEGAL  TENDER  85 

commerce.^  Chase,  C.  J.,  in  12  WalL  574,  575,  puts  the 
power  to  emit  bills  on  the  borrowing  clause,  and  the  power 
to  regulate  commerce;  and  as  to  the  power  to  exclude 
from  circulation  all  but  government  notes,  he  says  that 
it  "  might  perhaps  be  deduced  from  the  power  to  regulate 
the  value  of  coin " ;  and  that  "  this  was  the  doctrine  of 
the  Veazie  Bank  v.  Fenno,  although  not  fully  elaborated 
in  that  case." 

Now,  in  furnishing  the  currency  Avhat  may  the  govern- 
ment do  with  it?  Why  may  it  not,  as  a  question  of  legal 
.power,  make  it  do  the  full  and  usual  office  of  money ;  that 
is,  make  the  tender  of  it  the  legal  equivalent  of  a  tender 
of  metallic  money?  If,  as  we  see  reason  to  believe,  this 
was  not  prohibited,  and  not  inconsistent  with  any  pro- 
visions of  the  Constitution;  and  if,  at  the  same  time,  it 
was  a  power  which  had  been  frequently  exercised  by  those 
legislative  bodies  with  which  the  framers  of  the  instru- 
ment were  most  familiar,  and  was  generally  deemed  by 
them  to  go  along  with  that  power  of  furnishing  a  paper 
currency,  which  they  did  confer  upon  Congress;  if,  like 
the  power  of  conferring  upon  coin  the  legal-tender  quality, 
it  be  a  power  which  naturally,  and  according  to  the  usage 
of  nations,  is  included  in  that  complete  control  over  money 
and  the  currency  which  is  given  to  Congress,  then  it  cannot 
well  be  denied  to  our  national  government.  Such  legisla- 
tion may  or  may  not  be  highly  objectionable.  It  may  in 
a  perilous  time  be  useful,  and  even  necessary,  to  the  proper 

^  "  It  Is  clear  that  the  power  to  regulate  commerce  between  the 
States  carries  with  it.  not  impliedly,  but  necessarily  and  directly,  a  full 
power  of  regulating  the  essential  element  of  commerce,  namely,  the  cur- 
rency of  the  country,  the  money,  which  constitutes  the  life  and  soul  of 
commerce.  We  live  in- an  age  when  paper  money  is  an  essential  element 
in  all  trade  between  the  States ;  its  use  is  inseparably  connected  with  all 
commercial  transactions.  ...  I  understand  there  are  gentlemen  who  are 
opposed  to  all  paper  money,  who  would  have  no  circulating  medium 
whatever  but  gold  and  silver.  ...  I  would  ask  this  plain  question, 
whether  any  one  imagines  that  all  the  duty  of  government,  in  respect 
to  currency,  is  comprised  in  merely  taking  care  that  the  gold  and  silver 
coin  be  not  debased?  ...  If  government  is  bound  to  regulate  commerce 
and  trade,  and,  consequently,  to  exercise  oversight  and  care  over  that 
which  is  the  essential  element  of  all  the  transactions  of  commerce,  then 
government  has  done  nothing,  etc."     Works,  iv.  315,  316. 


86  LEGAL   ESSAYS 

discharge  of  the  duty  of  a  government.  Or  it  may  in 
ordinary  times  be  very  immoral  and  even  outrageous  legis- 
lation. But  it  is  not  for  a  Court  to  act  as  the  keeper  of 
the  legislative  judgment  or  the  legislative  conscience  on  a 
legislative  question.  When,  in  the  early  part  of  the  war 
that  was  carried  on  here  twenty  odd  years  ago,  the  State 
banks  broke  down,  it  was  thought  by  Congress  highly  im- 
portant, if  not  absolutely  necessary,  that  the  government 
should  furnish  a  currency  to  the  country ;  commerce  could 
not  go  on  without  it ;  there  was  not  coin  enough  to  do  the 
business  of  the  country.  The  emission  of  government  bills 
of  credit  was  a  natural  and  suitable  method,  not  merely  of 
doing  other  things,  but  of  supplying  a  currency.  And  in 
.the  straits  to  which  we  were  then  reduced,  the  credit  of  the 
government  being  gravely  in  doubt,  foreign  nations  expect- 
ing our  downfall,  and  our  own  people  fearful  of  the  result, 
even  the  government  promises  could  not  command  confi- 
dence.^ At  such  a  time  a  currency  resting  only  on  the 
government  credit  would  not,  it  was  thought,  do  the  office 

'  Miller,  J.,  in  Hepburn  v.  Griswold,  8  Wall.,  at  p.  6.32;  Strong,  J. 
(for  the  Court),  in  Legal  Tender  Cases,  12  Wall.,  at  p.  540.  ["It  Is 
instructive  to  recur  to  the  expressions  of  the  Chief  Justice  when  the 
Act  .  .  .  declared  unconstitutional  [in  Hepburn  v.  Griswold]  was  pend- 
ing. At  that  time  he  was  Secretary  of  the  Treasury  ;  and,  on  February 
4,  1862,  he  wrote  to  William  Cullen  Bryant,  then  editor  of  the  New 
York  'Evening  Pest.'  as  follows  :  'Your  feelings  of  repugnance  to  the  legal 
tender  clause  can  hardly  be  greater  than  my  own  ;  but  I  am  convinced 
that,  as  a  temporary  measure,  it  is  indispensably  necessary.  Prom 
various  motives  —  some  honorable,  and  some  not  honorable  —  a  consider- 
able number,  though  a  small  minority  of  the  business  men  or  peopTe, 
are  indisposed  to  sustain  the  ITnited  States  notes  by  receiving  and  pay- 
ing them  as  money.  This  minority,  in  the  absence  of  any  legal  tender 
clause,  may  control  the  majority  to  all  practical  intents.  To  prevent 
this,  which  would  at  this  time  be  disastrous  in  the  extreme,  I  yield  my 
general  views  for  a  particular  exception.  To  yield  does  not  violate  any 
obligation  to  the  people,  for  the  great  majority,  willing  now  to  receive 
and  pay  their  notes,  desire  that  the  minority  may  not  be  allowed  to 
reap  special  advantages  from  their  refusal  to  do  so ;  and  our  govern- 
ment is  not  only  a  government  of  the  people,  but  is  bound.  In  an  ex- 
igency like  the  present,  to  act  on  the  maxim  :  Salus  popuU  supremo 
est  lex. 

"  '  It  is  only,  however,  on  condition  that  a  tax  adequate  to  interest, 
reduction  of  debt,  and  ordinary  expenditures,  l)e  provided,  and  that  a 
uniform  banking  system  be  authorized,  founded  on  United  States  securi- 
ties, and,  with  proper  safeguards  for  specie  payments,  securing  at  once 
a  uniform  and  convertible  currency  for  the  people,  and  a  demand  for 


LEGAL  TENDER  87 

of  a  medium  of  exchange,  or  would  not  do  it  reasonably 
well,  without  giving  it  the  full  usual  and  legal  quality  of 
money;  with  that  quality  it  served  the  purpose.  If  it  be 
said,  as  it  has  been  said,^  that  it  would  have  served  the 
purpose  as  well,  or  better,  if  to  each  note  had  been  annexed 
the  right  to  ride  in  every  railway  car  in  the  country,  to 
enter  places  of  public  amusement  and  the  like,  the  answer 
is,  that  it  is  true  that  such  privileges  would  have  helped; 
but  these  incidents  would  have  been  foreign  to  the  purposes 
of  a  currency.  To  make  the  currency  do  the  usual  office  of 
money  more  effectually  and  fully  is  legitimate  regulation 
of  the  currency.  To  make  it  do  the  special  office  of  theatre 
tickets  or  railroad  tickets  is  superadding  to  its  quality  as 
currency,  as  money,  or  its  equivalent,  another  and  foreign 
quality. 

2.  Congress,  having  the  power  to  furnish  a  paper  cur- 
rency, and  to  give  to  that  currency  such  qualities  as  may 
make  it  do  the  full  and  usual  office  of  money,  may  use  its 
own  currency,  in  any  of  its  forms,  in  order  to  borrow 
money.  And,  in  combining  these  functions  of  issuing  a 
currency  and  borrowing  money,  if  Congress  give  to  its  cur- 
rency the  quality  of  legal  tender,  wholly  or  mainly,  because 
it  will  thus  be  a  better  instrument  for  borrowing  pur- 
poses, it  will  not  be  in  the  power  of  a  court  to  declare  the 
legislation  for  that  reason  unconstitutional. 

It  will  be  convenient  here  to  make  a  few  discriminations. 
In  order  to  supply  a  paper  currency  the  government  need 
not  emit  bills;    it  may  charter  a  private  bank  to  provide 


national  securities  which  will  sustain  their  market  value  and  facilitate 
loans.  It  is  only  on  this  condition,  I  say,  I  consent  to  the  expedient  of 
United  States  notes,  in  limited  amount,  made  a  legal  tender. 

"  '  In  giving  this  consent,  I  feel  that  I  am  treading  the  path  of  duty, 
and  shall  cheerfully,  as  I  have  always  done,  abide  the  consequences.  I 
dare  not  say  that  I  care  nothing  for  personal  consequences,  but  I  think 
1  may  say  truly  that  I  care  little  for  them  in  comparison  with  my  obliga- 
tion to  do  whatever  the  safety  of  the  country  may  require.'  2  Godwin's 
Life  of  Bryant,  165. 

"  See  also  Mr.  Chase's  statements  to  a  committee  of  the  House  of 
Representatives,  in  110  U.  S.,  p.  423."    2  Thayer's  Const.  Cas.  2286,  n.l 

'   [110  U.  S.,  p.  461,  by  Field,  J.] 


88  LEGAL  ESSAYS 

a  circulation,  and  may  simply  regulate  its  operations;  and 
it  may  be  itself  a  stockholder,  as  in  the  case  of  the  United 
States  Bank.  Or  it  may  avail  itself  of  banks  already 
established.  In  such  cases  there  is  no  borrowing  of  money. 
On  the  continent  of  Europe,  as  1  am  informed,  most  of 
the  cases  where  governments  made  the  paper  currency  a 
legal  tender,  before  the  time  of  our  Constitution,  —  and 
some  of  the  instances  since,  but  not  all,  —  were  those  of 
giving  this  quality  to  the  paper  of  private  or  qiiasi  pub- 
lic institutions;  not  to  government  bills.  Now,  in  such 
cases,  the  government  does  not  necessarily  borrow  money. 
Again,  even  where  it  makes  its  own  paper  a  currency,  and 
a  legal- tender  currency,  it  does  not  necessarily  raise  money 
on  it,  except,  of  course,  in  so  far  as  it  may  go  on  to  pay 
its  debts  with  it,  and  thus  borrow  by  'a  forced  loan;  for 
it  may,  as  the  States  sometimes  did,^  cause  its  paper  to 
be  given  out  by  lending  it  on  the  security  of  other  property. 
Or  it  may  issue  it  to  banks  on  their  giving  security  for  its 
redemption,  and  merely  allow  them  to  use  it  and  issue  it 
as  a  circulating  medium.  In  such  a  case  there  is  no  bor- 
rowing by  the  government. 

The  case  of  the  present  National  banks  is  not  quite  this ; 
for  they  take  notes  furnished  by  the  government  and  issue 
them  as  their  own,  and  are  fully  and  primarily  responsible 
upon  them ;  but  the  government  is  a  sort  of  guarantor,  and 
holds  specific  property  of  the  banks,  viz.  government 
bonds,  as  security,  to  be  applied  to  the  redemption  of  the 
notes,  being  itself  bound  to  redeem  them  on  the  failure  of 
the  banks  to  do  so,  and  having  the  right  to  apply  the  bonds 
to- reimburse  itself.  Now,  there  is  here  a  remote  element 
of  borrowing;  that  is  to  say,  the  property  of  the  banks 
which  must  be  deposited  consists  of  the  securities  of  the 
United  States;  and,  in  order  to  get  those  securities,  the 
banks,  or  somebody  else,  must  have  lent  money  to  the  United 
States.     So  that,  under  the  existing  system,  the  United 

'  Craig  V.  Mo.,  4  Tet,  410 


LEGAL  TENDER  89 

States  says:  (1)  there  shall  be  a  currency  for  the  whole 
country;  (2)  it  shall  be  furnished  by  the  United  States 
and  guaranteed  by  it,  but  issued  through  private  banks; 

(3)  in  receiving  these  printed  notes  the  banks  shall  leave 
as  security  with  the  United  States  a  certain  quantity  of 
bonds  of  the  United  States  which  are  their  own  property; 

(4)  they  must  return  these  notes  to  the  United  States 
before  they  can  have  their  bonds  again.  This,  of  course, 
is  uniting  the  operation  of  the  two  powers  of  borrowing 
and  of  issuing  a  currency.  If  the  government,  instead  of 
this  arrangement,  were  to  issue  its  own  currency  directly, 
like  the  greenbacks,  it  need  not  necessarily  borrow  with 
it;  for  it  might,  as  we  have  seen,  lend  it  on  security  (which 
might  or  might  not  be  its  own  bonds),  to  be  used  by 
others. 

But,  on  the  other  hand,  it  may  borrow  money  with  it; 
and  that  is  the  natural  and  obvious  way  of  giving  out  its 
currency.  That  was,  in  point  of  fact,  done  during  our 
great  rebellion.  If  this  currency  be  one  which  is  the  full 
legal  equivalent  of  money,  a  legal  tender,  the  principle  is 
still  the  same;  the  government  may  borrow  with  this  cur- 
rency as  well  as  any  other.  When  the  government  notes 
consist  of  promises  to  pay,  the  phrase  of  borrowing  is, 
of  course,  strictly  applicable.  It  is  true  we  more  commonly 
speak  of  this  operation  as  that  of  the  government  selling 
its  bonds  or  notes,  as  we  speak  of  a  man  selling  his  own 
promissory  notes.  But  it  is,  in  fact,  borrowing  money  on 
a  promise  to  pay;  and  in  the  case  of  the  government  it 
is  borrowing  upon  a  kind  of  promise  to  pay,  which  is  a 
part  of  the  mediufn  of  exchange,  and  of  that  which  is,  in 
the  full  legal  sense,  money. 

We  perceive,  then,  a  great  difference  between  private 
borrowing  and  public  borrowing.^  When  a  nation  borrows 
it  may,  as  we  see,  borrow  with  its  currency;  and  if  its 
currency  be  made  a  legal  tender  it  may  borrow  with  that. 

'  And  so  Juilliard  v.  Greenman,  110  U.  S.,  at  p.  448,  per  Gray,  J. 


90  LEGAL  ESSAYS 

I  do  not  say,  if  a  government  were  denied  the  power  of 
establishing  a  paper  currency  at  all,  that  it  could  give  to 
its  paper  the  quality  of  legal  tender  in  order  to  borrow 
with  it.  To  do  that  would,  indeed,  help  ^the  borrowing 
process;  but,  on  the  supposition  I  am  now  making,  viz., 
of  a  government  with  no  power  to  establish  a  paper  cur- 
rency, it  would  be  an  evasion  of  the  restriction  put  upon 
it,  to  say  that  it  could,  merely  for  facility  of  borrowing, 
annex  to  its  security  a  quality  which  would  be  forbidden 
if  it  were  not  borrowing.  It  is  not,  then,  as  part  of  the 
mere,  bare,  simple  process  of  borrowing  that  Congress  is 
to  be  said  to  have  the  power  of  giving  to  the  government 
paper  the  quality  of  money.  But  it  is  as  part  of  the 
borrowing  power  of  a  nation;  ^  of  a  body  which  has  other 
governmental  powers,  such  as  the  power  of  establishing  a 
paper  currency,  and  so  of  annexing  to  it  the  legal-tender 
quality ;  the  power  and  duty  of  raising  armies  and  provid- 
ing for  their  support,  and  so  of  raising  money  suddenly 
and  in  vast  quantities;  and  the  like.  Such  a  body  may 
borrow  with  its  currency  and  with  its  legal-tender  currency. 
If  there  be  any  exigency,  as,  for  example,  that  of  war, 
in  which  the  government  may  make  its  own  notes,  or  any 
other,  a  legal  tender,  it  seems  to  be  purely  a  legislative 
question  when  such  an  exigency  has  in  point  of  fact  arisen. 
This  was  the  unanimous  opinion  of  the  court  in  Juilliard 
V.  Greenman. 

»  Juillard  v.  Greenman,  110  U.  S.  421,  444-448.  The  pamphlet  of 
Mr.  Bancroft,  called  out  by  this  case,  proceeded  upon  singular  miscon- 
ceptions, and  was  unworthy  of  its  author's  fame.  [See  Borie  v.  Trott, 
5  Phila.  366;   2  Hare,  Am.  Const.  Law,  1232-1310.] 


A   PEOPLE   WITHOUT   LAW 

[Professor  Thayer  was  deeply  interested  in  the  Indian  question. 
He  felt  keenly  the  evils  of  the  "  arbitrary  methods  unknown  to  our 
Constitution  and  our  inherited  system  of  law "  by  which  the 
Indians  are  governed,  and  it  was  his  strong  belief  "  that  this 
country  has  no  duty  towards  the  Indians  so  solemn  and  so  instant 
as  that  of  bringing  these  poor  people  under  the  protection  and 
the  control  of  the  ordinary  laws  of  the  land."  In  the  effort  to 
bring  this  about  he  gave  his  time  freely  for  years,  addressing  many 
public  meetings,  preparing  memorials,  and  otherwise  taking  an 
active  part  in  the  efforts  to  secure  just  legislation.  In  March, 
1888,  soon  after  the  passage  of  the  General  Allotment  Act  (then 
known  as  the  "  Dawes  Bill  " ) ,  he  published  in  the  "  Atlantic 
Monthly  "  an  article  entitled  "  The  Dawes  Bill  and  the  Indians," 
and  in  October  and  November,  1891,  he  published  the  more  ex- 
tended article  which  follows.  After  its  publication  in  the  "  Atlantic 
Monthly  "  it  was  reprinted  in  pamphlet  form  by  the  Boston  Indian 
Citizenship  Committee  as  one  of  its  documents. 

Reference  is  made  in  the  foot-notes  to  some  of  the  statutes  and 
decisions  since  the  article  was  written  which  bear  on  the  matters 
under  discussion,] 


In  saying  "  A  People  without  Law  "  I  mean  our  Indians. 
He  who  tries  to  fix  and  express  their  legal  status  finds 
very  soon  that  he  is  dealing  chiefly  with  their  political  con- 
dition, so  little  of  any  legal  status  at  all  have  Indians. 
But  we  must  at  once  discriminate  and  remind  ourselves 
that  there  are  different  sorts  of  Indians.  What  makes  any 
of  them  peculiar,  in  a  legal  point  of  view,  is  the  fact  that 
they  belong  to  a  separate  political  body,  and  that  our  govern- 
ment mainly  deals  with  them,  not  as  individuals,  as  it  does 
with  you  and  me,  but  in  a  lump,  as  a  people  or  tribe.^ 

*  ["The  condition  of  the  Indians  and  Indian  tribes  within  the  limits 
of  the  United  States  Is  anomalous.  The  tribes,  though  In  certain  re- 
spects regarded  as  possessing  the  attributes  of  nationality,  are  held  to 
be  not  foreign,  but  domestic  dependent  nations."  Brewer,  J.,  in  Roft  v. 
Burney,  168  U.  S.  218,  221.] 


92  LEGAL  ESSAYS 

When  an  Indian  has  detached  himself  from  his  own 
people,  and  adopted  civilized  ways  of  life,  and  resides 
among  us,  he  at  once  becomes,  by  our  present  law,  a 
citizen  like  the  rest  of  us.  There  are  many  Indians  in  the 
country  who  have  done  this.  We  may  set  them  one  side. 
There  are  even  many  Indians  in  tribes  who  are  our  fellow- 
citizens.  In  the  language  of  Judge  Curtis  in  the  Dred 
Scott  case,  "  By  solemn  treaties  large  bodies  of  Mexican 
and  North  American  Indians  .  .  .  have  been  admitted  to 
citizenship  of  the  United  States."  The  Pueblo  Indians,  for 
instance,  have  been  judicially  declared  by  the  courts  of 
New  Mexico  to  be,  in  this  way,  citizens  of  the  United 
States,  although,  oddly  enough,  we  keep  agents  among 
them.  In  such  cases,  the  tribal  relation,  while  it  is  of 
course  a  matter  of  much  social  importance,  is  of  no  legal 
significance  at  all ;  it  is  like  being  a  Presbyterian,  or  a 
member  of  the  Phi  Beta  Kappa,  or  a  Freemason;  and 
each  Indian,  however  little  he  knows  it,  holds  a  direct 
relation  of  allegiance  to  the  United  States.  Again,  there 
are  Indians  in  the  separate  States,  as  in  Massachusetts, 
Maine,  and  New  York,  who,  although  in  tribes,  have  never 
held  any  direct  relations  with  the  United  States,  but  have 
been  governed  as  subjects  by  these  States.^  The  problem 
of  this  class  of  people  has  been  slowly  and  quietly  working 
out  under  the  control  of  the  separate  States,  without  any 
interference  from  the  general  government,  until,  in  some 
cases,  politically  and  legally  speaking,  they  are  not  In- 
dians. In  Massachusetts,  in  1869,  every  Indian  in  the 
State  was  made  a  citizen  of  the  State,  and  it  is  supposed, 

^  ["As  to  the  status  of  tribal  Indians  in  the  different  States,  see 
Danzell  v.  Webquish,  108  Mass.  138  ;  Seneca  Nation  v.  Christie.  126 
N.  Y.  122 ;  State  v.  Newell,  84  Me.  46.5 ;  The  Cherokee  Trust  Funds, 
117  U.  S.  288,  303.  In  the  last-named  case  it  is  said  of  eleven  or 
twelve  hundred  Cherokees  who  remained  at  the  East  when  the  '  Nation  ' 
was  removed  to  the  West,  '  They  ceased  to  be  a  part  of  the  Cherokee 
Nation,  and  henceforth  they  became  citizens  of  and  were  subject  to 
the  laws  of  the  State  in  which  they  resided.'  In  State  v.  Newell,  this 
language  is  quoted  as  applicable  to  all  the  Indians  of  Maine.  In  Ma'ssa- 
chusetts  by  a  statute  of  1869  (c.  463,  s.  1)  all  Indians  in  the  State 
were  declared  to  be  '  citizens  of  the  Commonwealth.'  "  1  Thayer's 
Const.  Cas.  591,  n.] 


A  PEOPLE  WITHOUT  LAW  93 

I  rather  think  correctly,  that  they  have  thus  become  citizens 
of  the  United  States.  It  would  not  have  been  so  if  the 
general  government  had  entered  into  relations  with  them 
before  this  declaration.  Then  the  assent  of  the  United 
States  would  have  been  required  to  make  them  citizens 
of  that  government.  But  whether  citizens  of  the  United 
States  or  not,  they  are  citizens  and  voters  in  Massachusetts, 
and  might  determine  the- election  of  a  President  of  the 
United  States  by  their  votes.  In  the  States  of  Maine  and 
New  York  the  courts  still  call  them  the  "  wards  of  the 
State,'"  and  as  such  the  States  govern  them  as  they  think 
proper,  as  being  subjects,  and  not  citizens. 

Leaving  these  exceptional  classes  of  Indians,  what  I  pro- 
pose to  speak  of  is  the  legal  status  of  that  less  than  a 
quarter  of  a  million  of  people  with  whom  the  United 
States  government  holds  relations  under  the  clause  of  the 
Constitution  which  gives  to  Congress  the  right  to  "  regu- 
late commerce  .  .  .  with  the  Indian  tribes,"  —  the  people 
with  whom  we  carry  on  war,  and  who  live  mainly  on  res- 
ervations secured  to  them  by  treaties  or  otherwise.  There 
are,  to  be  sure,  some  thousands  of  tribal  Indians  who  wander 
about  loosely  over  the  plains,  but  in  the  main  the  class 
that  I  am  to  deal  with,  the  class  that  is  intimated  when 
we  talk  of  the  "  Indian  question,"  may  be  shortly  desig- 
nated as  the  Eeservation  Indians.  And  yet  here  I  must 
again  discriminate.  Out  of  these  Eeservation  Indians  we 
may  conveniently  set  aside  the  seventy  thousand  or  so 
who  belong  among  the  "  civilized  tribes "  in  the  Indian 
Territory,  —  the  Choctaws,  Cherokees,  and  the  rest.  These 
are,  to  be  sure,  in  strictness.  Reservation  Indians,  and  their 
legal  status  is  highly  interesting;  a  time  is  coming  when 
it  will  require  the  close  attention  of  statesmen,  but  it 
does  not  so  much  press  upon  public  attention  just  now. 
These  people  govern  themselves  with  a  good  degree  of 
success;  they  have  constitutions  and  laws  closely  modeled 
upon  ours,^  and  have  made  much  progress  in  the  ways  of 

^  [See  Roff  v.  Burney,  168  U.  S.  218.] 


94  LEGAL  ESSAYS 

civilized  life.  As  regards  their  political  relation  to  us, 
they  rest,  so  far,  in  a  good  deal  of  security  on  the  pecul- 
iarly solemn  guarantees  with  which  our  government  accom- 
panied its  settlement  of  them  on  their  lands.  But,  as 
I  have  intimated,  the  time  will  probably  come  when,  with 
or  without  their  consent,  there  must  be  a  readjustment  of 
our  relations  with  them.^  In  looking  ahead,  we  must  con- 
template an  ultimate  absorption  of  that  region  into  the 
Union.  Already,  lately,  there  has  taken  place,  in  some 
measure,  an  extension  over  it  of  federal  courts  and  federal 
law.  If,  then,  we  deduct  these  "  civilized  Indians,"  there 
remain  somewhere  between  130,000  and  180,000  others, 
whom  I  am  calling  Eeservation  Indians,  either  living  on 
reservations  or  candidates  for  that  sort  of  life;  and  it  is 
these  whose  case  I  wish  to  consider.  In  this  statement 
the  Alaska  Indians  are  not  included.  They  are  too  little 
known,  and  their  relations  to  the  other  inhabitants  of  that 
country  and  to  our  government  too  little  ascertained,  to 
make  it  practicable  to  consider  them. 

I  am  speaking  of  "  Reservation  Indians,"  but  what  are 
Indian  reservations?  They  are  tracts  of  land  belonging 
to  the  United  States  which  are  set  apart  for  the  residence 
of  Indians.  This  is  done  in  various  ways,  —  by  treaty, 
by  a  law,  by  an  executive  order.  Often  the  reservation 
is  a  region  given  to  the  Indians  in  exchange  for  their 
ancestral  home  and  hunting-ground;  sometimes  it  is  a 
diminished  part  of  this  ancestral  ground.  The  Indians, 
in  most  cases,  are  recognized  as  having  a  legal  right  to 
the  occupation  of  this  land.  They  do  not  generally  own 
the  fee  of  it;  that  is  in  the  government.  If  the  tribe 
should  become  extinct  or  abandon  the  land,  the  title  would 
rest  wholly  in  the  United  States.     Their  title  is  the  same 


>  [See  Act  of  March  3,  1893  (27  U.  S.  St.  at  Large,  04."))  :  Act  of 
Jtme  28,  1898  (30  U.  S.  St.  at  Large,  495)  ;  Act  of  March  .!.  moi  (31 
U.  S.  St.  at  Large,  1447)  ;  Act  of  Apr.  26,  1906  (34  TT.  S.  St.  at  I^arge, 
137)  ;  Act  of  .Tune  16,  1906  (34  U.  S.  St.  at  Large,  267)  ;  Stephens  v. 
Cherokee  Nation,  174  U.  S.  445  ;  Cherokee  Nation  v.  Hitchcock,  187 
U.  S.  294.] 


A   PEOPLE  WITHOUT  LAW  95 

that  they  were  recognized  as  having  in  the  soil  which 
they  originally  occupied  and  ranged  over  when  the  Euro- 
peans came  here,  —  a  right  of  occupancy  merely,  yet  a  right 
recognized  by  the  courts  so  long,  at  any  rate,  as  it  is 
recognized  by  the  political  department.  This  right  is 
merely  tribal;  the  individual  does  not  own  land  or  have 
any  legal  right  in  it.  On  these  reservations  the  Indians 
keep  up,  in  point  of  theory  and  in  the  main,  their  separate 
national  housekeeping,  make  their  own  laws,  govern  them- 
selves. They  owe  no  allegiance  to  us;  each  Indian  owes 
allegiance  to  his  tribe  and  its  chiefs.^  With  these  sepa- 
rated people,  as  I  said,  we  carry  on  war,  and  until  lately 

*  ["It  will  help  to  bring  out  the  fundamental  peculiarity  of  the 
status  of  these  people,  if  the  conception  of  territorial  sovereignty,  which 
Is  ours,  be  contrasted  with  that  old  conception  of  '  tribe  sovereignty  ' 
which  is  pretty  nearly  theirs.  The  two  are  inconsistent,  and  the 
attempts  to  reconcile  our  claims  to  the  control  of  these  people  who  live 
upon  our  soil,  with  the  fiction  that  they  are  independent  and  govern 
themselves,  has  resulted  in  calamity  to  them  and  disgrace  to  us. 

"  Palgrave,  in  his  '  English  Commonwealth,'  vol.  i.  62,  in  speaking 
of  the  political  conceptions  which  were  at  the  bottom  of  the  Anglo- 
Saxon  States,  says :  '  We  consider  that  the  powers  of  government 
result  from  the  right  which  the  sovereign  possesses  over  the  land  in 
which  the  people  dwell  ;  the  allegiance  of  the  subject  arises  from  the 
spot  of  his  domicile,  or  the  accident  of  his  birthplace ;  and  the  modern 
law  of  nations  teaches  us  that  the  State  is  constituted  by  the  arbitrary 
or  geographical  boundaries  which  determine  its  extent  and  limit  its 
jurisdiction.  This  is  the  principle  of  the  modern  commonwealth  ;  but 
the  scheme  of  government  adopted  by  ancient  nations  was  essentially 
patriarchal.  Kings  were  the  leaders  of  the  people,  not  the  lords  of 
the  soil ;  and  their  authority  was  exerted  in  the  first  instance  over 
the  persons  of  their  subjects,  not  over  the  territories  which  composed 
their  dominion.' 

"  And  Sir  Henry  Maine,  in  his  '  Ancient  Law.'  c.  iv.,  while  remark- 
ing (0th  ed.  p.  106)  that  'territorial  sovereignty  —  the  view  which 
connects  sovereignty  with  the  possession  of  a  limited  portion  of  the 
earth's  surface  —  was  distinctly  an  offshoot,  though  a  tardy  one,  of 
feudalism,'  further  says  (lb.  p.  108)  :  '  It  is  a  consideration  well  worthy 
to  be  kept  in  view,  that  during  a  large  part  of  what  we  usually  term 
modern  history  no  such  conception  was  entertained  as  that  of  terri- 
torial sovereignty.  Sovereignty  was  not  associated  with  dominion  over 
a  portion  or  subdivision  of  the  earth.  .  .  .  After  the  subsidence  of  the 
barbarian  eruptions,  the  notion  of  sovereignty  that  prevailed  seems 
to  have  been  twofold.  On  the  one  hand  it  assumed  the  form  of  what 
may  be  called  "  tribe-sovereignty."  The  Franks,  the  Burgundians,  the 
Vandal,  the  Lombards,  and  Visigoths  were  masters,  of  course,  of  the 
territories  which  they  occupied,  and  to  which  some  of  them  have  given 
a  geographical  appellation ;  but  they  based  no  claim  of  right  upon 
the  fact  of  territorial  possession,  and  indeed  attached  no  importance 
to  it  whatever.  .  .  .  The  alternative  to  this  peculiar  notion  of  sov- 
ereignty appears  to  have  been  .  .  .  the  idea  of  universal  dominion.'  " 
2  Thayer's  Const.  Cas.  1912,  n.] 


96  LEGAL  ESSAYS 

we  have  concluded  treaties.     Such  was  the  way,  also,  of 
our  English  ancestors. 

It  has  turned  out,  however,  for  one  reason  and  another, 
that  they  succeeded  very  poorly  at  making  their  own  laws 
and  governing  themselves;  and  we  did  not  quite  let  them 
alone.  We  found,  for  instance,  that  it  would  not  do  to 
let  in  outsiders  to  trade  freely  with  them,  and  that  we 
must  keep  ourselves  advised  as  to  what  they  were  doing, 
and  whether  they  were  standing  to  their  promises ;  and  so 
we  sent  agents  among  them  to  represent  us  in  delivering 
to  them  the  goods  and  money  we  owed  them,  and  to 
protect  them  against  intrusion.  We  could  not  allow  in- 
toxicating liquors  to  be  sold  among  them,  or  firearms.  We 
must,  in  short,  fully  "  regulate  commerce "  with  them. 
In  this  way  it  came  about  that  we  really  interfered  a  great 
deal  with  the  theory  of  their  separate  national  house- 
keeping. Yet,  further,  when  wars  came,  and  with  them  the 
upsetting  of  everything  and  the  rearranging  by  new  treaties, 
of  course  we  interfered  still  more.  As  time  went  by  it  was 
perceived  that  the  Indian  self-government  amounted  to 
little,  and  we  occasionally  stepped  in  with  laws  to  fill  the 
gap.  But  it  is  only  occasionally  and  in  scraps  that  we  have 
done  this ;  for  the  most  part,  we  still  stand  by  and  see  them 
languishing  under  the  decay  of  their  own  government,  and 
give  them  nothing  in  its  place,  —  no  courts  to  appeal  to, 
and  no  resort  when  they  are  wronged  excepting  to  fight. 
We  keep  them  in  a  state  of  dependence  upon  the  arbitrary 
pleasure  of  executive  and  administrative  officials,  without 
the  steady  security  of  any  system  of  law. 

In  such  a  state  of  things  as  this,  with  a  wretched  system 
in  existence,  and  with  the  need  of  a  change,  two  courses 
are  open  to  a  good  citizen,  not  exclusive  of  each  other,  but 
yet  quite  different.  One  is  to  endeavor  to  procure  an  hon- 
est, righteous  administration  of  the  existing  system  while 
it  lasts,  the  punishment  of  offenders,  the  securing  of  good 
officials,  the  dismissal  of  bad  ones,  redress  for  outrages,  and 
the  creation  of  a  public  sentiment  that  will  help  to  these 


A  PEOPLE  WITHOUT  LAW  97 

ends.  The  other  course  is  to  displace  that  radically  bad 
element  of  the  existing  system,  the  "  lawlessness "  of  it, 
which  poisons  everything  that  is  done,  and  disheartens  the 
reformer  by  supplying  new  outrages  as  fast  as  he  can  cor- 
rect the  old  ones.  These  two  courses,  as  1  said,  are  not 
exclusive  of  each  other.  He  who  would,  first  of  all,  abolish 
certain  evil  features  of  our  present  method  of  dealing  with 
the  Indians  may  well  join  in  the  endeavor  to  mitigate  and 
mend  the  administration  of  the  present  system  while  it 
lasts.  And  yet  a  persuasion  of  the  need  and  the  possibility 
of  a  radical  change  will  surely  affect  the  judgment  in  deter- 
mining the  relative  importance  of  things;  it  will  settle 
the  question  of  emphasis,  that  most  important  thing  in 
thought  and  conduct.  I  desire  at  the  outset  to  express  a 
conviction  that  the  chief  thing  to  be  done,  the  thing  im- 
perative now,  the  thing  that  must  not  wait,  whatever  else  is 
postponed,  is  a  radical  change  in  the  particular  of  giving 
to  the  Indians  courts  and  a  system  of  law  upon  their  reser- 
vations; and  also  to  express  the  conviction  that  this  is  not 
only  a  thing  so  much  to  be  desired,  but  that  it  is  practicable, 
if  those  who  are  interested  in  this  subject  will  only  insist 
upon  it  in  this  spirit. 

(1)  Let  us  now,  in  coming  to  closer  quarters  with  this 
matter,  run  over  certain  facts  of  the  legal  and  political 
history  of  our  relation  with  the  Indians.  Of  the  more 
familiar  matters  I  shall  say  little,  but  we  will  try  to  observe 
some  of  the  leading  points,  —  enough  of  them  to  come  to 
a  fair  understanding  of  the  situation. 

When  the  Europeans  came  hither,  in  the  fifteenth  century 
and  later,  it  was  unavoidable  that  there  should  be  conflicts 
between  them  and  the  people  whom  they  found  here.  Not 
only  the  nature  of  the  situation,  but  the  European  ideas  of 
the  relation  to  each  other  of  white  men  and  men  of  other 
colors,  made  it  certain  that  there  would  be  trouble.  Had 
the  new-comers  all  been  saints  and  sages,  this  would  still 
have  happened,  for  they  and  the  savages  did  not  and  could 
not  understand  each  other.    Their  purposes  crossed.    Neces- 

7 


98  LEGAL   ESSAYS 

sity  drove  each  to  acts  that  seemed  hostile  to  the  other. 
How  could  the  savages  fail  to  regard  as  enemies  the  strange 
people  who  seized  and  carried  away  to  an  unknown  fate 
their  neighbors  and  friends;  who  carried  off  their  stores  of 
food,  and  stripped  the  graves  of  their  families  ?  How  could 
they  know  what  the  Europeans  were  at?  And  if  they  did 
know,  how  could  they  help  fearing  for  themselves  and  their 
household  gods?  The  Europeans,  however,  were  not  saints 
and  sages,  but  average  men  of  their  time ;  and  the  natives 
were  savages.  In  war  both  were  ferocious  and  brutal ;  and 
the  savages  were  ferocious  and  brutal  to  the  last  degree. 
In  that  famous  first  letter  of  Columbus,  —  lately  reprinted 
in  the  Latin  version  of  1493  by  Professor  Haynes,  of  Bos- 
ton, with  a  scholarly  translation,  —  telling  of  his  earliest 
discoveries,  we  read  these  ominous  words :  "  As  soon  as 
I  had  come  into  this  sea  I  took  by  force  some  Indians  from 
the  first  island."  How  did  the  Indians  who  remained  like 
that?  Somehow  or  other  Columbus  carried  away  nine  of 
them  to  Spain.  Was  it  likely  to  be  any  relief  to  their 
families  to  know  that  they  were  destined  to  be  duly  bap- 
tized at  Barcelona?  Columbus's  plans  contemplated  the 
regular  deportation  of  them  as  slaves.  In  the  next  century, 
the  Spaniards,  in  their  dealings  with  the  Indians,  did  not 
at  all  improve  upon  Columbus.  Of  De  Soto,  in  the  fourth 
decade  of  the  sixteenth  century,  we  are  told  in  Miss 
Fletcher's  Report  on  Indian  Education  and  Civilization, 
"  De  Soto's  wanderings  across  the  country  might  be  traced 
by  the  groans  of  Indian  captives,  male  and  female,  reduced 
to  slavery  and  compelled  to  bear  the  burdens  of  the  soldiers ; 
by  the  flames  of  dwellings,  the  desolation  of  fields,  and  the 
heaps  of  slain,  young  and  old." 

The  English  were  not  so  bad,  yet  the  adventurers  who 
sailed  along  these  coasts  continued  the  same  work  of  spread- 
ing terror  and  hatred  among  the  natives.  The  English- 
man Waymouth,  sailing  up  a  river  of  the  State  of  Maine 
in  1605,  "  kidnapped  and  carried  away  five  of  the  natives." 
"  We  used  little  delay,"  he  says,  "  but  suddenly  laid  hands 


A  PEOPLE   WITHOUT  LAW  99 

upon  them;  and  it  was  as  much  as  five  or  six  of  us  could 
do  to  get  them  into  the  (boat),  for  they  were  strong,  and  so 
naked  as  our  best  hold  was  b}^  their  long  hair  on  their 
heads."  Nine  years  later,  Thomas  Hunt,  a  shipmaster, 
carried  away  seven  and  twenty  Indians  from  the  coast  of 
Massachusetts,  and  sold  them  in  Spain  as  slaves.  Six  years 
later,  in  November,  1620,  the  Mayflower  company  began 
its  dealing  with  Indian  affairs  (while  exploring  Cape  Cod 
before  landing  at  Plymouth)  by  repeatedly  taking  the 
Indian  stores  of  corn  and  beans  which  they  had  laid  away 
for  their  own  supply ;  proposing  to  themselves,  indeed,  what 
the  Indians  must  be  pardoned  for  not  appreciating,  "  so 
soon  as  they  could  meet  with  any  of  the  inhabitants  of  that 
place,  to  make  them  large  satisfaction."  They  seem  also 
to  have  opened  Indian  graves,  for  we  are  told  of  the  bowls, 
trays,  dishes,  knife,  pack  needle,  the  "  little  bow,"  and 
strings  and  bracelets  of  fine  white  beads  that  they  found  in 
one  of  them.  They  were  now  among  the  people  whose 
neighbors  had  been  kidnapped  by  Thomas  Hunt.  It  is 
not  strange,  therefore,  to  read  that  when  they  saw  some 
Indians  a  week  later  and  tried  to  approach  them,  these 
ran  away;  and  to  find  that  the  first  actual  intercourse  be- 
tween our  New  England  ancestors  and  the  natives  was  as 
follows,  —  I  quote  from  Dr.  Palfrey's  History  of  New 
England :  "  The  following  morning  ( December  8.) ,  at  day- 
light, they  had  just  ended  their  prayers,  and  were  pre- 
paring breakfast  at  their  camp  on  the  beach,  when  they 
heard  a  yell,  and  a  flight  of  arrows  fell  among  them.  The 
assailants  turned  out  to  be  thirty  or  forty  Indians,  who, 
being  fired  upon,  retired." 

Observe,  I  am  not  just  now  concerned  in  blaming  either 
the  Pilgrims  or  the  natives.  I  am  drawing  attention  to 
facts,  and  beg  my  reader  to  remember  that,  all  things 
considered,  such  events  were  sure  to  happen.  They  help  us 
to  guess  and  forecast  the  relation  of  separation  that  was 
to  take  place  betv/een  the  new-comers  and  their  neighbors. 
As  time  went  on,  and  new  Europeans  swarmed  in  settle- 


100  LEGAL  ESSAYS 

ments  along  the  coast  and  on  the  rivers  and  meadows  ot 
the  interior,  —  drawn  often  to  the  same  points,  to  well- 
watered  spots  on  the  sea-coast,  the  fording-places  of  a  river, 
the  lower  falls  of  a  tidal  stream,  or  some  fine  inland  river 
bottom,  by  the  same  attraction  which  had  gathered  the 
natives  there,  —  as  these  things  happened,  all  men  know 
how  collisions  came  and  frightful  wars  and  devastation, 
how  the  savages  were  beaten  and  crowded  back.  The  neces- 
sity of  self-preservation  was  held  to  justify  any  atrocities. 
"  The  awful  conditions  of  the  case,"  says  our  grave  his- 
torian. Dr.  Palfrey,  in  speaking  of  the  performances  of 
Mason  and  Underbill  in  the  Pequot  war  of  1637,  "  forbid 
being  dainty  about  the  means  of  winning  a  victory,  or  about 
using  it  in  such  a  manner  that  the  chance  shall  not  have  to 
be  tried  again." 

Complications  arose.  Not  only  English,  but  French 
and  Dutch  had  set  foot  on  this  continent,  and  they  were 
rivals  here.  At  home,  also,  these  Europeans  fought;  this 
induced  sympathetic  fighting  here;  and  this,  again,  drew 
in  the  savages,  whose  quarrels,  as  among  themselves  and 
with  the  colonists,  were  fomented  for  the  advantage  of  the 
fighting  Europeans.  Whittier  in  his  beautiful  early  poem 
of  Pen  tucket  (the  Indian  name  of  Haverhill)  gives  a  pic- 
ture of  one  of  the  incidents  of  these  wars,  when  the  allied 
French  and  Indians  attacked  that  border  town,  his  birth- 
place :  — 

"  Even  now  the  villager  can  tell 
Where  Rolfe  beside  his  hearthstone  fell, 
Still   show  the  door  of  wasting  oak, 
Through  which  the  fatal  death-shot  broke, 
And  point  the  curious  stranger  where 
De  Rouville's  corse  lay  grim  and  bare,  — 
Whose  hideous  head,  in  death  still  feared, 
Bore  not  a  trace  of  hair  or  beard." 

Haverhill  was  my  own  birthplace,  and  I  well  recall  the 
dreadful  fear  of  Indians  which  the  children  of  that  town 
continued  to  cherish  so  late  as  fifty  odd  years  ago,  —  a  cen- 


A  PEOPLE  WITHOUT  LAW  101 

tury  and  a  quarter  after  these  events.  I  can  remember 
coming  home  from  school  in  mortal  terror  lest  my  family 
had  all  been  carried  away  by  the  Indians  during  my  absence. 
As  time  went  on,  in  some  colonies  the  Indians  were 
driven  to  the  west,  out  further  into  the  vast  unknown  wil- 
derness, and  were  forbidden  to  cross  the  line  of  demarca- 
tion between  them  and  the  whites;  and  state  reservations 
were  established  along  the  border,  on  which  friendly  Indians 
were  induced  to  settle,  acting  at  once  as  a  precaution  and 
a  buffer  against  the  shock  of  hostile  attack.  During  this 
process  other  things  had  happened.  Individual  Indians 
had  settled  among  the  whites,  and  had  sunk  into  the  mass 
of  the  people,  and  were  governed  like  the  rest.  To  some 
extent,  also,  tribes  of  Indians  had  been  caught  and  sur- 
rounded by  the  flood  of  the  new  civilization,  and  remained 
islanded  permanently  as  a  separate  people  in  the  midst 
of  it,  yet  governed  more  or  less  under  the  laws  of  the  col- 
onies. It  was  such  cases  as  these,  probably,  that  were 
referred  to  in  the  first  permanent  statute  of  our  present 
national  government,  passed  in  1802,  to  regulate  "  com- 
merce with  the  Indian  tribes."  The  sixteenth  section  of 
that  act  begins,  "  Nothing  in  this  act  shall  be  construed  to 
prevent  any  trade  or  intercourse  with  Indians  living  on 
lands  surrounded  by  settlements  of  the  citizens  of  the 
United  States,  and  being  within  the  ordinary  jurisdiction 
of  any  of  the  individual  States."  It  was  owing,  very  likely, 
to  this  relegation  to  the  States  of  the  affairs  of  such  Indians 
as  are  here  described  that  we  may  trace  the  circumstance, 
often  not  understood,  that  some  States,  like  New  York, 
Massachusetts,  and  Maine,  have  continued  to  deal  freely 
with  Indian  tribes  within  their  borders.  These  tribes,  in 
the  language  of  the  statute  of  1802,  had  come  to  be  "  sur- 
rounded by  settlements  of  the  citizens  of  the  United  States, 
and  .  .  .  within  the  ordinary  jurisdiction  of  the  .  .  . 
States."  As  a  dry  question  of  power,  Congress  might  at 
any  time  have  taken  control  of  them.  But  while  Congress 
was  staying  its  hand,  it  might  happen,  and  has  happened 


102  LEGAL  ESSAYS 

in  Massachusetts,  that  the  tribal  relation  had  been  dissolved. 
It  has  happened  in  the  case  of  individual  Indians,  whose 
separation  from  their  tribe  has  been  recognized  by  the 
States,  and  in  the  case  of  whole  tribes.  In  such  instances, 
the  "  Indian  tribe,"  in  the  sense  of  the  Constitution  of  the 
United  States,  that  is  in  the  sense  of  a  separate  political 
community,  has  ceased  to  exist  before  it  was  ever  recognized 
by  the  general  government;  and  therewith  the  power  of 
Congress  has  gone,  because,  as  regards  these  persons,  there 
exists  no  longer  the  opportunity  to  exercise  it. 

(2)  It  will  be  observed  that  I  have  now  brought  the 
United  States  upon  the  scene.  New  problems  have  thus 
emerged.  What  are  the  relations  between  this  new  govern- 
ment and  the  Indians?  How  has  their  relation  to  the 
separate  local  governments  been  affected? 

The  new  government  had  its  immediate  origin  in  a  sense 
of  danger  from  England,  and  in  the  need  of  protection 
from  that  peril,  and  the  like.  One  of  the  first  things  that 
presented  itself  was  the  possibility  of  harm  from  the  sav- 
ages ;  for  the  colonies  had  had  a  direful  experience  of  what 
an  enemy  might  do  who  chose  to  ally  himself  with  these 
people.  Accordingly,  in  July,  1775,  the  Continental  Con- 
gress resolved  "  that  the  securing  and  preserving  the 
friendship  of  the  Indian  nations  appears  to  be  a  subject  of 
the  utmost  moment  to  these  colonies,"  and  proceeded  to 
adopt  the  first  of  our  national  arrangements  for  managing 
Indian  affairs.  Commissioners  were  appointed  for  each  of 
the  three  departments  (North,  Middle,  and  South)  into 
which  all  the  Indians  were  divided.  These  commissioners 
were  to  have  power  to  make  treaties  with  the  Indians,  and 
to  watch  the  operations  of  the  British  superintendents. 
"  The  commissioners,"  it  was  resolved,  " .  .  .  (are  to) 
have  power  to  take  to  their  assistance  gentlemen  of  influ- 
ence among  the  Indians  in  whom  they  can  confide,  and  to 
appoint  agents  residing  near  or  among  the  Indians  to 
watch  the  conduct  of  the  (British)  superintendents  or 
their  emissaries."     There  are  many  signs  of  the  anxious 


A  PEOPLE  WITHOUT  LAW  103 

care  of  Congress  in  this  matter.  Treaties  with  the  Indians 
were  immediately  made.  Congress,  in  January,  1776, 
directed  the  importation  of  $800,000  worth  of  goods  on 
public  account,  to  be  sold  by  the  Indian  commissioners  to 
persons  licensed  to  trade  with  the  Indians,  at  cost  and 
expenses  and  a  commission  of  two  and  a  half  per  cent. 
These  traders  were  to  sell  only  at  fixed  points  and  fixed 
prices.  In  the  same  year  it  was  resolved  that  disputes 
between  the  whites  and  Indians  should  be  determined  (if 
the  Indians  would  agree)  by  arbitrators  chosen  one  by  each 
part}^  and  one  by  the  commissioners.  Many  of  the  Indians 
took  part  against  us.  The  anxiety  that  was  felt  and  the 
magnitude  of  the  "  Indian  question  "  of  that  day  are  shown 
by  the  way  in  which  this  figures  in  the  Declaration  of  Inde- 
pendence in  1776,  and  in  the  Articles  of  Confederation  in 
1778-81.  "  He  has  endeavored,"  is  the  charge  of  the 
Declaration  against  the  British  king,  "  to  bring  on  the 
inhabitants  of  our  frontiers  the  merciless  Indian  savages, 
whose  known  rule  of  warfare  is  an  undistinguished  destruc- 
tion of  all  ages,  sexes,  and  conditions."  In  the  ninth  of  the 
Articles  of  Confederation,  the  separate  States,  which  are 
forbidden  to  carry  on  war,  may  do  this  where  a  State 
"  shall  have  received  certain  advice  of  a  resolution  being 
formed  by  some  nation  of  Indians  to  invade  "  it ;  and  these 
Articles  entrust  to  the  Union  "  the  sole  and  exclusive  right 
and  power  of  regulating  the  trade  and  managing  all  affairs 
with  the  Indians  not  members  of  any  of  the  States ;  pro- 
vided, that  the  legislative  right  of  any  State  within  its  own 
limits  be  not  infringed  or  violated."  i 

The  Confederation  proceeded,  of  course,  like  its  predeces- 
sor the  Continental  Congress,  to  make  treaties  with  the 
Indians  as  separate  people ;  for  example,  the  treaty  with 
the  Cherokees  in  1785,  at  Hopewell,  in  which  it  was  pro- 
vided that  if  an  outsider  settled  on  Indian  land  he  should 
forfeit  the  protection  of  the  United  States,  and  be  subject 
to  punishment  by  the  Indians.  In  1786  a  formal  ordinance 
was  adopted  for  the  regulation  of  Indian  affairs  in  the 


104  LEGAL  ESSAYS 

territory  on  the  west,  lately  ceded  by  the  States  of  the 
Atlantic  margin.  This  region,  divided  into  two  depart- 
ments, was  assigned  to  superintendents  acting  under  the 
Secretary  of  War,  who  were  to  attend  to  the  regulation  of 
trade  with  the  Indians  and  the  distribution  of  presents 
among  them,  and  to  report  upon  any  signs  of 'disaffection. 
Only  licensed  citizens  of  the  United  States  could  trade  with 
the  Indians;  but  any  such  citizen  who  brought  a  recom- 
mendation from  the  governor  of  his  State,  paid  fifty  dollars, 
and  gave  a  bond  had  a  right  to  be  licensed. 

Now  came  the  organization  of  the  new  government,  our 
present  United  States,  in  1787-89.  This,  while  preserving 
the  old  names  of  the  "  United  States  "  and  the  "  Union," 
was  in  reality,  as  we  all  know,  a  very  different  thing  in- 
deed. For  certain  great  purposes  it  was  a  nation,  gathering 
into  one,  for  the  accomplishment  of  these  purposes,  the 
combined  power  of  all  the  colonies,  and  standing,  as  regards 
these  ends,  as  a  single  state  covering  the  entire  country; 
to  which,  as  being  in  these  particulars  the  supreme  state, 
every  citizen  had  a  direct  relation  and  owed  sole  allegiance. 
This  was  not  so  before.  Accordingly,  now  we  not  only  find 
the  general  government  endowed,  as  before,  with  the  power 
of  representing  all  the  country  in  its  relation  to  the  Indian 
tribes,  but  we  also  find  a  dropping  out  of  the  old  ambigu- 
ous and  troublesome  clauses  about  saving  the  legislative 
right  of  the  separate  colonies.  The  Constitution  of  the 
new  government  provided  that  Congress  should  have  power 
"  to  regulate  commerce  with  foreign  nations,  and  among 
the  several  States  and  with  the  Indian  tribes."  Here, 
again,  as  in  the  two  great  documents  before  named,  the 
Declaration  of  Independence  thirteen  years  before,  and  the 
Articles  of  Confederation  eight  years  before,  we  remark 
the  importance  of  the  "  Indian  question  "  of  the  period  by 
the  express  and  conspicuous  mention  of  it,  and  by  the  cir- 
cumstance that  the  handling  of  it  is  deemed  matter  of  gen- 
eral concern.  It  was  a  dealing  with  separate  nations;  if 
not  with  a  foreign  people,  yet  a  separate  one. 


A  PEOPLE  WITHOUT  LAW  105 

(3)  In  starting  now  to  take  a  brief  survey  of  the  legal 
position  of  the  Indians  under  the  new  Constitution,  and  of 
the  scope  of  the  power  which  the  nation  has  over  them, 
let  us  stop  a  moment  on  the  threshold  and  allow  ourselves 
to  conjecture  what  (juestions  might  present  themselves  and 
what  answers  would  be  given.  Will  the  Indian  tribes,  our 
ancestors  might  have  asked,  remain  permanently  as  separate 
political  bodies?  Or  will  they  become  broken  up  and 
absorbed  into  our  own  population?  As  regards  the  other 
anomalous  element  in  our  body  politic,  slaves,  the  word 
"  slave "  had  been  left  out  of  the  Constitution :  it  was 
expected  that  slavery  would  disappear,  and  there  was  an 
objection  in  some  minds  to  having  any  permanent  trace  of 
it  in  the  document.  As  to  Indians  it  was  not  so ;  the  inser- 
tion among  the  provisions  for  the  basis  of  representation 
of  the  phrase  "  Indians  not  taxed  "  indicated  perhaps  not 
merely  the  recognition  of  the  fact  that  there  were  then 
some  Indians  who  had  become  embodied  among  our  people, 
but  also  an  expectation  that  such  a  process  would  go  on. 
Assuming  that  it  would,  how  long  would  it  last?  And 
meantime  supposing  there  were  war  with  the  Indians  and 
a  conquest,  what  would  happen?  Was  it  thought  that  the 
Indians  might  be  driven  wholly  out  of  our  borders, — • 
north,  or  south,  or  into  the  unfathomed  west  beyond  the 
Mississippi?  If  they  were  subdued,  how  would  they  be 
governed?  Would  the  United  States  have  free  and  full 
power  of  governing  them  as  it  thought  wise,  as  a  subject 
people;  or  would  it  be  restrained  by  the  Constitution  and 
its  amendments,  which  secured  trial  by  jury  and  other 
rights?  Apart  from  war  and  conquest,  would  the  Indians 
become  enfeebled  and  lose  their  power  of  self-government? 
Would  they  ask,  or,  if  they  did  not  ask,  would  they  need 
to  be  governed  by  us?  Would  they  continue  to  occupy  the 
great  tracts  which  were  then  recognized  as  "  Indian  coun- 
try," or  would  new  States  grow  up,  and  the  white  people 
spread  over  into  the  Indian  land? 

Some  of  these  questions  undoubtedly  presented  them- 


106  LEGAL  ESSAYS 

selves.  Certainly  the  makers  of  the  Constitution  counted 
upon  the  growth  of  new  States  at  the  west.  Was  not  the 
Ordinance  of  1787,  adopted  while  the  Constitution  was 
making,  an  express  provision  for  that?  Unquestionably 
they  expected,  except  for  the  exigencies  of  war,  that  the 
Indians  would  long  continue  a  separate  people,  and  that 
so  long  as  they  did  the  right  to  occupy  their  lands  would 
remain  to  them  until  it  was  parted  with  by  their  own  con- 
sent. That  the  Indians  were  expected  to  be  gradually  more 
or  less  absorbed  into  our  population  we  may  believe,  for 
that  process  had  long  gone  on  in  the  colonies.  That  our 
ancestors  supposed  that  in  one  way  or  another  the  Indians 
would  ultimately  disappear  as  a  separate  element  we  may 
also  believe,  for  they  recognized  them  as  capable  of  civiliza- 
tion, and  laid  plans  for  their  education,  training,  and 
Christianizing,  in  July,  1775,  Congress  had  voted  money 
toward  the  education  of  certain  Indians  at  "  Dr.  Whee- 
lock's  school,"  now  Dartmouth  College,  and  in  the  next 
year  they  had  made  provision  for  the  residence  of  "  minis- 
ters and  schoolmasters "  among  the  Indians,  in  order  to 
promote  "  the  propagation  of  the  gospel  and  the  cultivation 
of  the  civil  arts  "  among  them.  And  although  the  experi- 
ence of  the  colonies  was  not  calculated  to  encourage  any 
confident  expectation  of  working  out  a  high  form  of  civili- 
zation among  the  native  tribes  as  a  separate  population,  yet 
it  might  well  lead  to  an  expectation  of  a  gradual  fading  out 
of  the  peculiarities  of  tribal  life  and  tribal  government, 
and  a  gradual  subjection  of  them  to  the  whites;  for,  as 
I  said,  it  had  been  so  in  the  colonies.  We  may  believe,  then, 
that  the  chance  was  not  wholly  overlooked  that  the  general 
government  might,  for  one  reason  or  another,  and  for  a 
longer  or  a  shorter  time,  have  to  govern  the  Indians  as 
subjects.  If  it  conquered  them  in  war,  it  could  hardly  be 
doubted  that  the  power  to  govern  them  would  be  the  same 
as  if  a  foreign  people  were  conquered ;  and  if,  in  the  grad- 
ual course  of  events,  they  should  come  to  be  surrounded  by 
our  people,  and  the  tribal  bond  should  be  enfeebled  and 


A  PEOPLE  WITHOUT  LAW  107 

tribal  government  ineffective  and  the  people  a  source  of 
danger  to  us,  it  may  well  have  been  expected  that  our  gov- 
ernment would  take  full  control  of  them  and  govern  them. 

Our  ancestors  had  themselves  been  witnesses  to  things 
that  would  suggest  these  possibilities.  They,  as  well  as  we, 
had  had  experience  of  the  shoving  back  of  Indians  as  the 
whites  crowded  in,  of  the  gradual  surrounding  of  Indian 
settlements  by  whites  and  their  submission  to  white  legis- 
lation. They  had  witnessed  in  the  separate  colonies,  for 
example  in  Virginia  and  Massachusetts,  the  same  process 
which  we  in  our  day  are  witnessing  on  the  continental  scale. 
What  happened  in  those  colonies  is  happening  now  between 
the  Mississippi  and  the  Pacific.  How  had  this  matter  been 
dealt  with  at  the  periods  of  which  the  framers  of  the  Con- 
stitution had  knowledge?  In  Massachusetts,  as  early  as 
1693-94,  the  legislature  introduced  law  among  the  In- 
dians. "  To  the  intent  that  the  Indians  may  be  forwarded 
in  civility  and  Christianity,"  they  provided  for  the  appoint- 
ment of  "  one  or  more  discreet  persons  within  several  parts 
of  this  Province  to  have  the  inspection  and  more  particular 
care  and  government  of  the  Indians  in  their  respective 
plantations,  ...  to  have  .  .  .  the  power  of  a  Justice  of 
the  peace  over  them  "  in  civil  and  criminal  cases  "  accord- 
ing to  the  .  .  .  laws  of  the  Province,"  etc.  And  in  Janu- 
ary, 1789,  just  before  the  United  States  Constitution  went 
into  operation,  a  statute  of  Massachusetts  established  a 
board  of  five  overseers  of  the  Marshpee  Indians,  "  with  full 
power  ...  to  regulate  the  police  of  the  said  plantation, 
to  establish  rules  .  .  .  for  the  well  ordering  and  man- 
aging the  affairs  ...  of  the  said  Indians,  .  ,  .  and  the 
said  overseers  .  .  .  may  .  .  .  appoint  ...  a  guardian  or 
guardians  to  the  said  Indian  and  other  proprietors  to  carry 
into  execution  their  said  regulations  and  orders."  These 
overseers  or  guardians  were  authorized  to  pass  upon  all 
contracts,  leases,  and  the  like  made  with  the  Indians,  and 
to  bring  actions  in  their  behalf  and  adjust  controversies 
between  them  and  the  whites.     They  were  also  to  render 


108  LEGAL   ESSAYS 

legal  accounts  regularly  to  the  governor  and  council.  Under 
these  and  like  statutes  the  Indians  of  Massachusetts  were 
governed  entirely,  governed  not  as  citizens,  but  as  a  subject 
population;  being,  in  the  language  of  the  Supreme  Court 
of  Massachusetts,  speaking  through  Mr.  Justice  Gray  in 
1871,  "  not  subjected  to  taxation,  nor  endowed  with  the 
ordinary  civil  and  political  rights  of  citizens,  but  .  .  . 
treated  as  the  wards  of  the  commonwealth."  ^  In  Virginia, 
also,  before  and  after  the  making  of  the  Constitution  of 
the  United  States,  where  Indian  tribes  had  become  reduced 
to  very  small  numbers,  trustees  were  appointed  to  sell  their 
land  and  apply  the  proceeds  for  their  benefit,  while  the  sur- 
vivors appear  to  have  sunk  into  the  mass  of  the  free  popu- 
lation of  the  colony. 

There  is  a  hint  in  these  things,  for,  as  the  reader  will 
observe,  I  have  been  speaking  of  the  purposes  and  expecta- 
tions of  those  who  framed  the  Constitution  of  the  United 
States ;  of  what  they  meant  when  they  spoke  of  "  Indians 
not  taxed,"  and  of  regulating  commerce  "  with  the  Indian 
tribes";  and  of  what  they  meant  by  their  silence  when 
they  said  nothing  more.  In  view  of  the  historical  facts 
now  mentioned,  of  the  nature  of  the  government  which 
was  then  created  and  the  powers  conferred  upon  it,  we  must 
conclude,  I  think,  that  while  the  United  States  might,  if  it 
saw  fit,  keep  on  in  the  old  method  of  dealing  with  the 
Indians  as  a  separate  people,  it  also  might,  in  various  con- 
tingencies easily  possible  to  foresee,  change  the  plan,  and 
govern  the  Indians  as  a  subject  population  in  methods 
suited  to  their  stage  of  development. 

(4)  Let  us  now  turn  from  the  attitude  of  conjecture 
and  forecast,  and  trace  what  has  happened  in  point  of  fact. 
In  the  first  place,  very  many  treaties  ^  were  made,  mainly 

1  Danzell  v.  Webqulsh,  108  Mass.  133.  134. 

*  [Of  these  treaties  Mr.  Justice  Gray  says  in  Jones  v.  Meehan,  175 
TJ.  S.  1.  10 :  "  In  construing  any  treaty  between  the  United  States  and 
an  Indian  tribe,  it  nmst  always  (as  was  pointed  out  by  the  counsei 
for  the  appeiiees)  be  borne  in  mind  that  the  negotiations  for  the  treaty 
are  conducted,  on  the  part  of  the  United  States,  an  enlightened  and 
powerful   nation,   by   representatives  skilled   in   diplomacy,    masters  of 


A  PEOPLE  WITHOUT  LAW  109 

for  the  purpose  of  getting  and  exchanging  land.^  Tiie 
number,  down  to  1871,  when  the  making  of  Indian  treaties 
was  abandoned,  was  a  little  under   four  hundred.     One 

a  written  lanjjiiage,  understanding  the  modes  and  forms  of  creating 
the  various  technical  estates  known  to  their  law,  and  assisted  by  an 
interpreter  employed  by  themselves  ;  that  the  treaty  is  drawn  up  by 
them  and  in  their  own  language  ;  that  the  Indians,  on  the  other  hand, 
are  a  weak  and  dependent  people,  who  have  no  written  language  and 
are  wholly  unfamiliar  with  all  the  forms  of  legal  expression,  and  whose 
only  knowledge  of  the  terms  in  which  the  treaty  is  framed  is  that 
imparted  to  them  by  the  interpreter  employed  by  the  United  States : 
and  that  the  treaty  must  therefore  be  construed,  not  according  to  the 
technical  meaning  of  its  words  to  learned  lawyers,  but  in  the  sense 
in  which  they  would  naturally  be  understood  by  the  Indians."] 

^  ["It  has  long  been  perceived  that  the  key  to  the  solution  of  the 
Indian  question  lies  in  a  just  arrangement  about  their  land,  —  one 
which  should  abolish  the  tribal  title,  give  to  individuals  the  ownership 
of  reasonable  quantities,  and  throw  open  to  settlement  all  the  rest. 
In  general,  as  it  is  well  known,  our  law  has  mainl.v  dealt  with  the 
Indians  by  tribes,  and  not  as  individuals,  and  has  not  recognized,  even 
in  the  tribes,  ownership  of  the  land  they  occupied,  in  any  strict  sense 
of  the  word.  England,  like  the  other  states  of  Europe,  claimed  the 
lands  of  the  New  World  by  the  right  of  discovery.  Had  these  lands, 
when  found,  been  occupied  by  '  Christian  people.'  their  title  to  the  land 
would  have  been  respected  ;  but  barbarous  races  were  at  that  period 
dealt  with  in  a  very  different  way.  The  Indians  were  perceived  to  be 
human  beings,  and  so  capable  of  rights  ;  and  they  were  allowed  a  right 
of  occupancy  in  the  land,  in  such  reasonable  amounts,  at  any  rate,  as 
they  actually  inhabited  and  used.  They  were  not  quite  on  a  footing 
with  the  wolves  and  wild-cats  that  also  tenanted  this  country  ;  for, 
unlike  them,  they  did  have  their  right  of  occupancy.  But  when  they 
went  away  the  right  was  gone  :  and  it  has  been  repeatedly  laid  down 
by  the  Supreme  Court  of  the  United  States  that  the  '  Indian  title,' 
as  it  is  sometimes  called,  was  not  inconsistent  with  the  fee  simple, 
the  absolute  ownership,  being  in  other  persons.  So  that  it  is  not  too 
much  to  say  that  the  soil  of  this  country  was  granted  by  the  Europeans, 
and  has  since  passed  from  hand  to  hand,  upon  a  theory  which,  as 
regards  ownership  of  the  soil,  placed  the  Indians  and  the  wild  animals 
that  roamed  over  it  upon  the  same  footing,  (o) 

"  But  there  came  the  inevitable  process  of  adjustment,  of  fixing  the 
boundaries  of  the  '  Indian  country,'  and  taking  a  cession  of  their  claims 
to  all  the  rest ;  and  then,  further  cessions  and  treaty  arrangements, 
and  removals  of  the  Indians  to  new  and  remoter  regions.  In  this  way 
their  slender  rights  to  the  land  became  modified  ;  some  tribes  acquired 
an  absolute  title,  and  others  a  smaller  right  than  that,  but  greater,  or 
at  least  securer,  than  before.  We  moved  most  of  them  to  the  West, 
and  were  fain  to  forget  them.  But  that  was  not  so  easil.v  done.  The 
country  grew  ;  and  in  recent  years,  instead  of  their  beins  isolated  and 
far  beyond  our  settlements,  it  has  come  to  pass  that  they  are  in  the 
midst  of  them.  The  tide  of  our  population  has  crept  in  and  around 
and  behind  their  reservations,  and  swept  far  beyond  them.     People  look 

(a)  "The  whole  continent  was  divided  and  parceled  out  and  granted 
by  the  governments  of  Europe  as  if  it  had  been  vacant  and  unoccupied 
land."  (Taney,  C.  J.,  in  U.  S.  v.  Rogers,  4  Howard,  at  page  572.)  For 
a  brief  statement  as  to  the  "  Indian  title "  see  U.  S.  v.  Cook,  19 
Wall.  591. 


110  LEGAL  ESSAYS 

tenth  of  these  were  made  before  this  century.  Passing  by 
these,  the  details  of  which  are  very  numerous,  I  confine 
myself  to  the  general  laws.  Our  present  United  States 
took  its  first  permanent  step  in  general  legislation  about 
the  Indians  in  the  statute  of  March  30,  1802 :  ^  "An  Act 
to  regulate  trade  and  intercourse  with  the  Indian  tribes, 
and  to  preserve  peace  on  the  frontiers."  Its  provisions  are 
largely  continued  in  all  later  laws.  I  will  give  a  brief 
abstract  of  it,  and  the  reader  will  notice  how  closely  this 
statute  follows  the  theory  of  regarding  the  Indians  as  a 
separate  and  self-governing  people.  After  providing  for 
marking  certain  extensive  boundary  lines  previously  fixed 
by  treaty  between  "  the  United  States  and  various  Indian 
tribes,"  it  forbids  our  citizens  and  others  from  going  into 
this  Indian  country  without  a  passport,  and  committing 
any  act  against  the  person  or  property  of  Indians  in  their 
own  country  which  would  be  a  crime  if  committed  against 
a  citizen  of  the  United  States  within  any  State.  The  of- 
fender, if  property  were  taken,  was  to  restore  to  the  Indians 
twofold.  If  he  could  not  pay  at  least  the  full  value,  it 
should  be  paid  out  of  the  treasury  of  the  United  States,  but 
only  on  condition  that  the  Indians  abstained  from  violence 
in  righting  themselves.  Settlement  on  Indian  lands,  and 
trading  without  a  license  from  the  superintendent  ap- 
pointed by  the  United  States  for  the  particular  Indian 
department,  were  forbidden;  but  anybody  (limited,  by  a 
later  statute,  to  citizens  of  the  United  States)  giving  bond 


over  into  the  fertile  Indian  tracts  from  whicli  they  are  shut  out,  and 
covet  them  ;    and  they  begin  to  brealt  throush  and  steal. 

"  It  has  long  been  seen  that  these  regions  must  be  opened  ;  that 
the  ownership  or  control  of  great  tracts  of  country  by  tribes  —  tribal 
control,  that  strong  bulwark  of  the  power  of  the  chiefs  —  must  be 
broken  up ;  that  individual  Indians  should  be  allowed  the  immense 
stimulus  towards  a  civili/.ed  life  which  comes  with  the  separate  owner- 
ship of  land  ;  and  last,  but  liy  no  means  least,  that  the  clamor  of  out- 
siders for  a  chance  at  the  Indians'  unused  and  wide-stretching  fields 
must,  in  some  honest  way.  be  met."  The  I^awes  Bill  and  the  Indians, 
J.  B.  Thayer,  61  Atlantic  Monthly.  816,  317.1 

*  Re-enacting  the  temporary  statutes  of  1790,  1793,  1796,  and  1799, 
passed  for  two  and  three  years,  which  covered  more  or  less  of  the  same 
ground. 


A  PEOPLE  WITHOUT  LAW  111 

with  sureties  was  to  be  licensed.  The  sale  of  the  Indian 
title  to  land,  except  under  a  treaty  or  agreement  with  the 
United  States,  was  forbidden.  In  order  to  promote  civili- 
zation among  friendly  tribes,  and  to  secure  their  continued 
friendship,  the  President  was  authorized  to  supply  them, 
to  a  specified  amount,  with  useful  domestic  animals  and 
implements  of  husbandry,  and  goods  or  money,  and  to 
appoint  "  persons  from  time  to  time  as  temporary  agents 
to  reside  among  the  Indians."  If  Indians  should  cross  the 
line  into  any  State  or  Territory  of  the  United  States  and 
commit  crime  or  outrage,  the  injured  party  or  his  repre- 
sentatives were  to  apply  to  the  Indian  superintendent  or 
other  designated  officer  and  furnish  proofs,  and  this  officer 
was  to  make  demand  upon  the  Indian's  nation  or  tribe  for 
satisfaction.  If  this  satisfaction  were  neglected  or  refused 
for  a  year,  the  President  was  to  be  informed,  and  was  to 
take  further  steps  to  secure  it.  The  individual  injured  was 
ultimately  to  be  paid  by  the  United  States,  unless  otherwise 
indemnified;  but  if  he  should  take  the  remedy  into  his 
own  hands  by  violence,  he  forfeited  this  right.  Outside 
territorial  courts  and  United  States  courts  were  to  have 
jurisdiction  of  offenses,  under  this  act.  The  military  might 
turn  out  anj^body  who  was  unlawfully  in  the  Indian 
country. 

So  far  no  attempt  was  made  to  govern  the  Indians,  or 
to  administer  justice  on  their  land.  Of  course  the  theory 
was  that  of  a  people  who  did  all  this  for  themselves.  But 
in  a  statute  of  March,  1817,  we  see  something  new.  The 
doing  in  the  Indian  country  of  any  act  which  would  be  pun- 
ishable if  committed  in  any  place  under  the  exclusive  juris- 
diction of  the  United  States  is  made  punishable  as  it  would 
be  if  committed  there,  and  jurisdiction  is  given  to  the 
superior  court  of  the  Territory,  or  the  United  States  court 
of  the  district,  into  which  the  otfender  should  first  be 
brought.  But  offenses  of  Indians  upon  Indians  are  ex- 
cepted. Here  is  a  beginning  of  governing  the  Indian 
country,  for  this  covers  offenses  between  whites  and  between 


112  LEGAL  ESSAYS 

Indians  and  whites.  And  then  comes  another  recognition 
of  the  Indian  weakness.  By  a  statute  of  1819,  "  for  the 
purpose  of  providing  against  the  further  decline  and  final 
extinction  of  the  Indian  tribes  adjoining  to  the  frontier 
settlements  of  the  United  States,  and  for  introducing 
among  them  the  habits  and  arts  of  civilization,"  the  Presi- 
dent, with  the  Indians'  consent,  may  employ  among  them 
persons  to  teach  them  in  the  mode  of  agriculture  suited  to 
their  situation,  and  their  children  in  reading,  writing,  and 
arithmetic.  Soon  afterwards  we  find  in  the  statutes  a 
reflection  of  that  terrible  pressure  of  the  whites  upon  the 
Indians  of  certain  Southern  States  which  led  to  driving 
them  across  the  Mississippi.  By  a  statute  of  1830  the  sum 
of  $500,000  was  appropriated  to  carry  out  the  plan  for 
removing  all  Indians,  with  their  consent,  from  the  exist- 
ing States  or  organized  Territories  to  the  unorganized 
region  west  of  the  Mississippi,  with  authority  solemnly  to 
assure  the  Indians  making  the  exchange  that  the  United 
States  will  forever  secure  and  guarantee  to  them  the  country 
thus  given,  and,  if  preferred,  will  give  them  a  patent  for 
it,  the  land  to  revert  to  the  United  States  if  the  tribes  be- 
come extinct  or  abandon  the  land. 

On  June  30,  1834,  a  revision  was  passed  of  the  important 
statute  of  1802,  already  summarized,  superseding  the  chief 
of  the  laws  above  named.  It  first  gave  a  definition  of  what 
was  meant  by  "  Indian  country,"  in  clumsy  phrases  which 
were  interpreted  by  the  Supreme  Court  of  the  United 
States  in  1877  ^  to  mean  all  the  land  west  of  the  Missis- 
sippi outside  of  the  States  of  Louisiana  and  Missouri  and 
the  Territory  of  Arkansas,  and  the  lands  east  of  the  Mis- 
sissippi which  now  constitute  the  States  of  Michigan  and 
Wisconsin.  The  definition  was  dropped  in  the  Revised 
Statutes  of  1874,  and  no  other  was  substituted.  The  defi- 
nition of  "  Indian  country  "  now  accepted  by  the  Supreme 
Court  of  the  United  States  ^  is  "  all  the  countr}'  to  which 

»  Bates  V.  Clark,  95  U.  S.  204. 

*  Eo)  parte  Crow  Dog,  109  U.  S.  561. 


A  PEOPLE  WITHOUT   LAW  113 

the  Indian  title  has  not  been  extinguished,  anywhere  within 
the  limits  of  the  United  States."  This  includes  the  country 
acquired  by  the  United  States  since  1834,  and  does  not  ex- 
cept what  is  within  the  boundary  of  the  States  unless,  as  in 
Colorado,  it  may  have  been  otherwise  provided  when  they 
were  admitted  into  the  Union.  The  statute  of  1834,  after 
defining  the  Indian  country,  re-enacted,  with  modifications, 
the  previous  provisions  regulating  trade  and  intercourse. 
There  is  the  same  clear  theory  of  recognizing  the  Indians 
as  a  separate  people,  but  we  find  one  or  two  more  of  those 
striking  changes  which  mark  the  inroads  upon  this  theory. 
Instead'  of  trusting  wholly  to  the  Indians  to  extradite  an 
oifending  member,  we  find  now  that  the  superintendents, 
agents,  and  sub-agents  are  to  endeavor,  by  such  means  as 
the  President  may  authorize,  to  arrest  and  bring  to  trial 
(before  the  outside  courts)  any  Indians  committing  crimes 
on  the  reservation.  That  is  a  large  discretion.  The  reader 
will  remember  that  some  crimes  on  the  reservations  were 
forbidden  by  the  statute  of  1817.  The  President  may  also 
employ  the  military  in  seizing  such  Indians.  The  super- 
intendents, agents,  and  sub-agents  are  empowered  to  search 
for  and  destroy  spirituous  liquors,  by  whomsoever  intro- 
duced, and  to  destroy  any  distillery,  though  set  up  by  an 
Indian.  The  provision  of  1817  for  extending  to  the  Indian 
country  the  criminal  code  of  the  United  States  for  places 
under  the  exclusive  jurisdiction  of  the  United  States  is 
continued,  but  excludes,  as  before,  the  act  of  one  Indian 
against  another. 

In  1849  the  progress  of  ideas  about  the  Indians  was 
further  marked  by  transferring  the  management  of  Indian 
affairs  from  the  War  Department,  where  hitherto  it  had 
lain,  to  the  newly  created  Department  of  the  Interior.  The 
eare  of  the  Indians  was  ceasing  to  be  thought  of  as  a  matter 
incidental  to  foreign  affairs  or  to  war.  Vast  tracts  of 
country  and  great  numbers  of  Indians  had  been  added  to 
our  country  by  the  ending  of  the  Mexican  war,  and  many 
of  these  Indians  were  made  citizens  by  the  treaty.    People 

8 


114  LEGAL  ESSAYS 

had  been  flocking  to  California  and  the  Western  plains,  and 
complicating  Indian  administration  still  further.  After 
the  war  of  secession,  in  1866,  provision  was  made  for  the 
enlistment  of  Indians  in  our  armies  as  scouts,  —  an  excel- 
lent step  lately  followed  up  by  the  present  administration. 
Other  changes  were  caused  by  the  Pacific  Eailroad;  for 
as  General  Walker  says,  "  In  1867-68  the  great  plough  of 
industrial  civilization  drew  its  deep  furrow  across  the  con- 
tinent, from  the  Missouri  to  the  Pacific,  .  .  .  (bringing 
changes)  which  without  it  would  have  been  delayed  for  half 
a  century."  The  Eevised  Statutes  of  the  United  States, 
compiled  in  1874,  reveal  the  still  increasing  complexity  of 
Indian  affairs.  The  "  peace  policy "  had  been  adopted, 
and  we  find  now  not  merely  the  regular  Indian  commis- 
sioner authorized  in  1832,  but  an  additional  board  of  com- 
missioners, not  exceeding  ten  (serving  without  pay),  to 
supervise  contracts  and  purchases  for  Indians,  and  for  other 
purposes;  also  five  salaried  inspectors  to  visit,  examine, 
and  report  on  the  different  superintendencies  and  agencies, 
and  see  to  enforcing  the  due  performance  of  their  duty  by 
the  superintendents,  agents,  and  other  employees.  The 
old  provisions  for  authority  to  the  President  to  employ 
teachers  among  the  Indians,  "  with  their  own  consent,"  are 
retained.  In  general  we  mark  an  increase  of  interference 
with  the  Indians  and  of  discretionary  power  over  them  in 
the  executive  department,  as  in  allowing  the  President  to 
distribute  the  money  or  goods  due  to  a  tribe  to  the  heads 
of  families  (instead  of  the  tribal  authorities),  and  directly 
to  the  individuals  who  are  entitled  to  participate.  Agents 
are  required  to  protect  in  the  enjoyment  of  their  lands 
those  Indians  who  have  received  lands  in  severalty,  and 
are  desirous  to  adopt  the  habits  of  civilized  life.  This 
draws  attention  to  a  process  which  had  been  going  on  by 
treaty,  of  dividing  up  tribal  lands  to  the  individual  Indians. 
If  any  other  Indian  molest  a  land-owner,  the  tribal  annui- 
ties are  to  be  cut  down;  and  if  the  trespasser  be  a  chief, 
the  local  superintendent  of  Indian  affairs  may  depose  him 


A  PEOPLE  WITHOUT  LAW  115 

from  Ms  office  of  chief  for  three  months.  Think  of  that, 
—  the  deposing  of  the  sacred  ruler  of  a  separate  "  nation  " 
by  a  small  United  States  official !  This  is  indeed  a  bold 
inroad  on  the  theory  of  Indian  self-government.  The  sale 
of  ardent  spirits  to  any  Indian  under  the  charge  of  a  super- 
intendent, anywhere  in  the  country,^  is  forbidden,  —  a 
restraint  upon  Indians  which  does  not  apply  to  any  other 
class  of  human  beings.  The  general  laws  of  the  United 
States  defining  and  punishing  forgery  and  depredations  on 
the  mails  are  also  extended  to  the  Indian  country,  by  a 
statute  of  1855. 

Meantime,  the  practices  of  the  agents  and  of  the  Indian 
Department  generally  had  more  than  kept  pace  in  this 
direction  with  the  course  of  legislation.  "  lender  the  tra- 
ditional policy  of  the  United  States,"  says  General  Walker,^ 
"  the  Indian  agent  was  a  minister  resident  to  a  domestic 
dependent  nation."  But  in  actual  fact  he  had  grown  long 
ago  to  be  a  ruler  over  them.  "  All  offenses,"  wrote  an 
Indian  agent  to  the  commissioner  in  September,  1890,  "  are 
punished  as  I  deem  expedient,  and  the  Indians  offer  no 
resistance." 

It  remains  to  speak  more  particularly  of  three  recent 
statutes,  and  then  to  consider  the  duty  of  our  government. 

II 

Three  important  laws  regarding  the  Indians  remain  to  be 
mentioned,  one  of  which  was  incorporated  in  the  Eevised 
Statutes. 

(a)  A  statute  of  March  3,  1871,  reads:  "No  Indian 
nation  or  tribe  within  the  territory  of  the  United  States  shall 
be  acknowledged  or  recognized  as  an  independent  nation, 
tribe,  or  power  with  whom  the  United  States  may  contract 
by  treaty,"  —  saving,  however,  the  obligation  of  previous 
treaties.    This  was  enacted  twenty  years  ago.    Did  it  abolish 

*  So  construed  in  United  States  v.  Holliday,  3  Waliace,  407. 
2  The  Indian  Question,  117. 


116  LEGAL  ESSAYS 

the  existence  of  these  separate  political  powers,  nations,  or 
tribes  ?  No,  we  all  know  that  they  have  continued  and  been 
recognized  just  as  before.  Did  it  abolish  the  carrying  on 
of  war  with  the  Indians?  No,  we  remember  the  horrible 
events  of  last  winter,  and  a  recent  judicial  decision  in  South 
Dakota,  that  the  Indian  known  as  "  Plenty  Horses  "  was 
not  guilty  of  homicide  in  killing  a  white  man  during  those 
troubles,  because  it  was  an  act  of  war.  Do  we  then  carry 
on  war  with  Indians  and  not  make  treaties  with  them? 
Yes.  A  strange  and  absurd  situation,  is  it  not  ?  Yet  we  do 
make  "  agreements  "  with  them  as  with  a  separate  people ; 
and  the  chief  result  of  this  law  is,  and  was  intended  to  be, 
that  it  is  no  longer  the  President  and  Senate  (the  treaty- 
making  power)  that  conclude  these  measures,  but  the  legis- 
lative body,  Congress.  This  statute  was  the  result  of  a 
struggle  on  the  part  of  the  House  of  Eepresentatives  to 
share  in  these  proceedings,  and  was  forced  upon  the  Senate 
on  the  last  day  of  a  session  by  putting  it  into  an  appropria- 
tion bill.  It  was  thought  at  the  time  by  so  competent  an 
observer  as  General  Walker,  formerly  Commissioner  of 
Indian  Affairs,  to  be  "  a  deadly  blow  at  the  tribal  auton- 
omy " ;  and  so  it  was,  in  the  logic  of  it.  But  the  step  was 
not  then  followed  up,  for  it  did  not  represent  any  clear 
determination  of  Congress  to  end  the  old  methods;  and 
this  strange  notion  of  refusing  to  make  treaties  with  a 
people  with  whom  we  continue  to  go  to  war  has  remained 
on  our  statute  book  as  another  of  the  many  anomalies  that 
mark  our  Indian  policy.  Is  it  not  plain,  however,  that  if 
we  abandon  the  policy  of  treaties  with  Indians  we  should 
give  up  the  practice  of  war  with  them  ?  Our  arrangements 
with  them  are  now  called  agreements ;  but  this  gives  them 
no  added  sanction;  they  are  still  to  be  dealt  with  on  the 
analogy  of  treaties. 

(h)  The  second  statute  to  which  I  refer  is  that  of  March. 
3,  1885.  It  followed  up  timidly  the  logic  of  the  law  of 
1871,  though  for  only  a  step  or  two;  but  it  marked  the 
greatest  advance  yet  reached  in  the  process  of  assuming  the 
direct  government  of  the  Indians.     The  law  provides  that 


A  PEOPLE  WITHOUT  LAW  117 

thereafter  Indians  should  be  punished  for  committing  upon 
Indians  or  others  any  one  of  seven  leading  crimes  (mur- 
der, manslaughter,  assault  with  intent  to  kill,  rape,  arson, 
burglary,  or  larceny)  :  if  in  a  Territory  (whether  on  or 
off  a  reservation),  under  the  territorial  laws  and  in  the 
territorial  courts ;  and  if  in  a  State  and  on  a  reserva- 
tion, then  under  the  same  laws  and  in  the  same  courts 
as  if  the  act  were  done  in  a  place  within  the  exclusive 
jurisdiction  of  the  United  States.  This  is  a  very  im- 
portant statute.  In  principle  it  claims  for  the  United 
States  full  jurisdiction  over  the  Indians  upon  their  res- 
ervations, whether  in  a  State  or  Territory.  Heretofore,  the 
laws,  for  example  the  statute  of  1817  and  the  renewals 
of  it,  had  excepted  the  acts  of  Indians  committed  upon 
their  fellows  within  the  Indian  country.  The  acts  of 
Indians  against  white  persons  or  of  whites  against  Indians 
had  been  dealt  with,  but  the  internal  economy  of  Indian 
government  was  not  invaded  in  its  dealing  or  refusing  to 
deal  with  the  relations  of  members  of  the  tribe  to  one 
another.  The  constitutionality,  even,  of  such  legislation 
as  this  of  1885  had  been  denied.  Judges  had  been  careful 
to  avoid  asserting  this  full  power  in  cases  where  the  reserva- 
tion was  in  a  State.  Thus  the  Supreme  Court  of  the 
United  States,  in  1845,  in  holding  good  the  law  of  1817, 
which  punished  (in  this  particular  case)  the  act  of  a  white 
man  against  a  white  man  in  the  Indian  country,  among  the 
Cherokees,  said :  "  Where  the  country  occupied  by  them  is 
not  within  the  limits  of  one  of  the  States,  Congress  may  by 
law  punish  any  offense  committed  there,  no  matter  whether 
the  offender  be  a  white  man  or  an  Indian."  ^  In  1834  Mr. 
Justice  McLean  had  denied  the  power  of  Congress  to  legis- 
late in  this  way  for  an  Indian  reservation  in  a  State,  while 
admitting  it  in  a  Territory  ;2  and  in  December,  1870,  the 
judiciary  committee  of  the  Senate  of  the  United  States 
even  went  so  far  as  to  say,  "  An  act  of  Congress  which 

'    rr.  S.  V.  Rogers,  4  How.  .567,  572.] 
"   [U.  S.  V.  Bailey,  1  McLean,  234.] 


118  LEGAL  ESSAYS 

should  assume  to  treat  the  members  of  a  tribe  as  subject 
to  the  municipal  jurisdiction  of  the  United  States  would 
be  unconstitutional  and  void."  ^  But  the  air  was  at  last 
cleared  in  1886,  when  the  Supreme  Court  of  the  United 
States  had  to  deal  with  the  indictment,  under  this  statute, 
of  one  Indian  for  the  murder  of  another  Indian  on  a  reser- 
vation in  the  State  of  California.^  It  was  laid  down  in 
this  case,  one  of  the  landmarks  of  our  Indian  law,  that 
the  government  of  the  United  States  has  full  power,  under 
the  Constitution,  to  govern  the  Indians  as  its  own  sub- 
jects, if  it  sees  fit  to  do  so,  and  to  such  partial  or  full 
extent  as  it  sees  fit;  that  nothing  in  the  tribal  relation 
or  in  any  previous  recognition  of  it  by  the  United  States 
cuts  down  this  legislative  power ;  that  this  is  so  not  merely 
in  the  Territories,  but  on  reservations  within  the  States. 
The  case,  as  I  said,  arose  on  a  reservation  in  the  State  of 
California.  "  This  proposition  itself,"  said  the  court,  with 
no  dissent,  speaking  through  Mr.  Justice  Miller  (that  is, 
the  proposition  to  punish  under  the  laws  of  a  Territory 
and  by  its  courts  a  tribal  Indian  who  commits  a  crime 
upon  another  tribal  Indian  on  a  reservation  in  a  Territory), 
"  is  new  in  legislation  of  Congress.  .  .  .  The  second,  which 
applies  solely  to  oifenses  .  .  .  committed  within  the  limits 
of  a  State  and  ...  of  a  reservation,  ...  is  a  still  further 
advance  as  asserting  this  jurisdiction  over  the  Indians 
within  the  limits  of  the  States  of  the  Union.  .  .  .  After  an 
experience  of  a  hundred  years  of  the  treaty-making  system 
of  government.  Congress  has  determined  upon  a  new  depart- 
ure, —  to  govern  them  by  acts  of  Congress.  ...  It  seems  to 
us  that  this  is  within  the  competency  of  Congress."  ^ 

Not  less  important  than  the  decision  itself  is  the  prin- 
ciple on  which  it  is  put.  In  supporting  the  statute  the 
government  counsel  had  relied  on  the  clause  in  the  Consti- 
tution which  gives  Congress  power  "  to  regulate  commerce 

'  Walker,  The  Indian  Question,  125. 
*  United  States  v.  Kagama,  118  U.  S.  375. 

8  [See  also  Talton  v.  Mayes,  163  U.  S.  376;  Our  New  Possessions, 
infra,  p.  153,  note  p.  171.] 


A  PEOPLE  WITHOUT  LAW  119 

with  .  .  .  the  Indian  tribes."  But  the  court  boldly  re- 
jected this  as  "  a  very  strained  construction  of  this  clause," 
and  rested  its  decision  upon  no  specific  provision  of  the 
Constitution,  but  upon  the  just  inferences  to  be  drawn 
from  the  nature  of  the  situation,  namely,  that  the  Indians 
are  a  decayed  power,  residing  upon  our  soil  and  under  the 
protection  of  the  general  government,  —  a  people  who  must 
be  governed  by  somebody,  and  whom,  so  long  as  their 
separate  political  existence  is  recognized  by  the  United 
States,  nobody  but  the  United  States  has  any  right  to 
govern.  "  The  Constitution,"  says  the  court,  "  is  almost 
silent  in  regard  to  the  relations  of  the  government  .  .  . 
to  the  numerous  tribes  of  Indians  within  its  borders.  .  .  . 
While  we  are  not  able  to  see  in  either  of  these  clauses  of 
the  Constitution "  (namely,  the  one  relating  to  the  basis 
of  representation,  "  excluding  Indians  not  taxed,"  or  the 
clause  giving  Congress  power  to  regulate  commerce  with 
the  Indian  tribes)  "  any  delegation  of  power  to  enact  a 
code  of  criminal  law,  .  .  .  (yet)  these  Indians  are  within 
the  geographical  limits  of  the  United  States.  The  soil  and 
the  people  within  those  limits  are  under  the  political  con- 
trol (either)  of  the  government  of  the  United  States  or 
of  the  States  of  the  Union.  There  exist  .  .  .  but  these 
two.  The  territorial  governments  owe  all  their  power  to 
the  statutes  of  the  United  States.  .  .  .  (But)  Congress 
has  defined  a  crime  committed  within  the  State  and  made 
it  punishable  in  the  courts  of  the  United  States.  .  .  . 
Congress  has  done  it.  It  can  do  it  with  regard  to  all. 
offenses  to  which  the  federal  authority  extends.  .  .  .  This 
is  within  the  competency  of  Congress.  These  Indian  tribes 
are  the  wards  of  the  nation.  They  are  .  .  .  dependent  ^ 
on  the  United  States,  dependent  largely  for  their  daily  food, 
dependent  for  their  political  rights.  They  owe  no  alle- 
giance to  the  States  and  receive  from  them  no  protection. 
Because  of  the  local  ill  feeling,  the  people  of  the  States 

'  The  italics  are  those  of  the  court.    There  is  a  tacit  reference  to  the 
famous  phrases  of  an  earlier  opinion. 


120  LEGAL  ESSAYS 

where  they  are  found  are  often  their  deadliest  enemies. 
From  their  very  weakness  and  helplessness,  so  largely  due 
to  the  course  of  dealing  of  the  federal  government  with 
them  and  the  treaties  in  which  it  has  been  promised  them, 
arises  the  duty  of  protection,  and  with  it  the  power.  .  .  . 
The  power  of  the  general  government  ...  is  necessary 
to  their  protection  as  well  as  to  the  safety  of  those  among 
whom  they  dwell.  It  must  exist  in  that  government  be- 
cause it  never  has  existed  anywhere  else,  because  the  theatre 
of  its  exercise  is  within  the  geographical  limits  of  the 
United  States,  because  it  never  has  been  denied,  and  be- 
cause it  alone  can  enforce  its  laws  on  all  the  tribes." 

Here,  it  will  be  noticed,  is  a  comprehensive  and  states- 
manlike declaration.  It  covers  the  entire  ground;  the 
government,  if  it  pleases,  can  go  on  to  extend  its  law  fully 
over  the  Indians  while  they  are  still  a  separate  people. 
Observe,  now,  one  thing.  The  existence  of  this  right  and 
power,  and  the  clear  and  authoritative  declaration  of  it 
by  the  Supreme  Court  of  the  United  States  for  the  first 
time  in  1886,  have  brought  home  to  the  Congress  of  the 
United  States  and  to  us  all,  now  within  these  recent  years, 
a  great  weight  of  responsibility.  It  may  have  been  thought 
possible  before  to  deny  the  legal  power  fully  to  govern  the 
Indians.  It  cannot  be  denied  now.^  Under  such  circum- 
stances, the  mere  neglect  or  refusal  to  act  is  itself  action, 
and  action  of  the  worst  kind. 

(c)  The  third  and  last  of  these  statutes  —  and  the  last 
upon  which  I  shall  comment  —  is  the  General  Land  in 
Severalty  Law  (often  known  as  the  Dawes  Bill). 2  This 
was  passed  in  February,  1887,  within  nine  months  of  the 
great  decision  upon  which  I  have  just  been  remarking: 
the  dates  are  May  10,  1886,  and  February  8,  1887.  But 
it  was  pending  in  Congress  at  the  time  of  that  decision, 
and  had  long  been  pending  there  under  bitter  opposition. 

'  [As  to  the  extent  of  this  power  of  Congress,  see  also  the  Important 
case  of  Lone  Wolf  v.  Hitchcock.  187  IT.  S.  r..").'M 

'  [Act  of  Feb.  8,  1887,  c.  119  (24  U.  S.  St.  at  Large,  388),  now  re- 
ferred to  by  the  court  as  the  General  Allotment  Act.l 


A  PEOPLE  WITHOUT  LAW  121 

This  great  enactment  opens  the  way,  within  a  generation 
or  two,  to  settle  the  whole  Indian  question.  Whether  it  is 
to  be  regarded  as  a  good  law  or  a  bad  one,  however,  depends 
on  the  moderation  with  which  it  is  administered.  The 
peculiarity  of  it  is  not  that  its  methods  are  new,  for  similar 
arrangements  had  repeatedly  been  made,  for  a  score  of 
years  before,  in  the  case  of  particular  tribes,  as  the  Winne- 
bagoes  in  1863,  the  Stockbridge  Munsee  Indians  in  1871, 
the  Utes  in  1880,  and  the  Omahas  in  1882.  But  now, 
by  a  general  law  applicable  to  all  reservations,  the  E^resident 
is  given  power  to  make  almost  every  Eeservation  Indian 
outside  the  civilized  tribes  a  landowner  in  severalty  and  a 
citizen  of  the  United  States  against  his  will.  The  right 
of  citizenship  is  made  to  follow  the  ownership  of  land. 

The  scheme  of  the  act  is  this :  Whenever  the  President 
thinks  that  any  Indian  reservation,  or  any  part  of  one, 
is  advantageous  for  agricultural  or  grazing  purposes,  he 
may  cause  the  whole  or  any  part  of  the  reservation  to  be 
surveyed  and  allotted  in  severalty,  in  specified  amounts, 
among  all  the  heads  of  families,  single  persons,  and  orphan 
children  of  the  tribe  or  band.  The  Indian  heads  of 
families  may  select  for  their  children,  and  the  Indian 
agents  for  the  orphans.  If  in  four  years  from  the  order- 
ing of  an  allotment  no  selection  is  made  in  any  given  case, 
it  may  be  made  by  an  agent  on  the  order  of  the  Secretary 
of  the  Interior.  Patents  (that  is,  deeds)  are  to  be  issued 
by  the  Secretary  of  the  Interior  on  his  approval  of  the 
allotments,  setting  forth  that  the  United  States  will  hold 
the  land  in  trust  for  the  allottee  for  twenty-five  years, 
and  then  convey  in  fee  to  him  or  his  heirs,  free  of  all  en- 
cumbrances. Meantime  the  allottee  cannot  convey  or  en- 
cumber the  land,  and,  as  it  seems,  it  is  not  taxable.^ 
When  these  allotments  and  patents  are  all  made  (and  per- 
haps socmer)    the  Indians  are  said  by  the  terms  of  the 

1  [United  States  v.  Rlckert,  188  U.  S.  432  (1903),  decides  tliat  neither 
the  land  nor  the  permanent  improvements  made  on  it  by  the  Indian,  nor 
the  horses,  cattle,  or  other  personal  property  furnished  to  him  by  the 
Government  for  use  on  the  land  are  taxable.] 


/        122  LEGAL  ESSAYS      " 

statute  to  pass  at  once  from  the  jurisdiction  of  the  United 
States  to  that  of  the  Territory  or  State  in  which  the 
reservation  is  situated,  and  to  become  at  once  citizens  of 
the  United  States.  The  construction  of  the  law  is  doubt- 
ful, but  it  is  the  view,  I  believe,  of  the  Indian  Bureau  at 
Washington  that  these  results  happen  not  merely  when 
all  is  done,  but  man  by  man,  as  each  has  his  allotment 
and  his  patent.  I  venture  to  question  the  soundness  of 
that  view.^  This  statute  also  provides  for  allotments, 
with  like  results,  to  tribal  Indians  not  on  reservations 
who  may  settle  upon  the  public  lands.  It  makes  citizens 
at  once  of  all  Indians  who  leave  their  tribe  and  voluntarily 
live  apart  from  it,  adopting  the  habits  of  civilized  life. 
This  last  class  of  persons  had  been  declared  by  the  Supreme 
Court  of  the  United  States,  in  November,  1884,2  ^ot  to 
be  citizens  of  the  United  States,  in  the  absence  of  such 
legislation.''     It  is  important,  also,  to  notice  that  Indians 

1  [See  Matter  of  HeflP,  197  V.  S.  488  :  Goudy  v.  Meath,  203  U.  S.  146  ; 
The  Dawes  Bill  and  the  Indians,  J.  B.  Thayer,  Gl  Atlantic  Monthly, 
318-320.] 

2  [Elk  V.  Wilkins,  112  V.  S.  94.] 

^  ["It  is  interesting  to  notice  that  these  words  'citizen'  and  'citi- 
zenship,' which  we  use  so  freely  and  familiarly  to-day  as  indicating 
membership  of  a  self-governing  State,  did  not  have  that  meaning  in 
English  speech  until  a  little  more  than  a  hundred  years  ago  ;  and  it  is 
we,  on  this  side  of  the  water,  who  have  given  them  this  sense,  as  it  is 
we  who  have  given  prominence  to  the  thing  for  which  these  words  now 
stand.  The  words,  indeed,  are  very  old  in  English  usage,  as  one  may 
see  by  his  Blackstone  ;  but  they  imported  merely  membership  of  a  burgh 
or  local  municipal  corporation.  [See  5  Seld.  Soc.  Pub.  xxxvii,  Ixxxv- 
Ixxxvii,  40,  43,  55,  for  concivin  in  13th  and  14th  centuries.]  The  word 
'  subject '  was  the  English  representative  of  our  present  term  '  citizen.' 
Our  sense  of  it  seems  to  have  been  a  Gallicism  :  in  French  use  (teste 
Rousseau)  it  was  common  enough  to  speak  of  one's  countrymen  as  cito- 
yens  and  concttoyenft.  In  the  Declaration  of  Independence  we  read  It 
once :  '  He  has  constrained  our  fellow-citizens,'  etc. ;  and  once  in  1781, 
in  the  Articles  of  Confederation.  In  the  treaty  with  France  of  1778. 
the  usual  phrase  is  '  subjects,'  '  people,'  or  '  inhabitants,'  but  '  citizens  ' 
does  occur  as  applicable  to  the  ITnited  States.  In  the  treaty  with  Great 
Britain  of  1782,  it  is  used  in  a  marked  way  :  '  There  shall  be  a  .  .  . 
peace  between  his  British  majesty  and  the  said  States,  and  between  the 
subjects  of  the  one  and  the  citizens  of  the  other.'  There  was  evidently 
felt  to  be  an  awkwardness  in  calling  these  newly  emancipated  repub- 
lican '  sovereigns  '  of  America  by  the  old  phrase  of  '  subjects.'  Of  course, 
as  all  know,  the  word  was  freely  used  in  the  national  Constitution  in 
1789  :  and  so,  but  less  freely,  in  the  Massachusetts  constitution  of  1780; 
but  it  does  not  occur  in  the  rejected  constitution  of  1778.  I  believe  that 
It  is  not  to  be  found  in  any  of  the  ten  state  constitutions  that  were 
adopted  before  that  of  Massachusetts.     In  the  ninth  decade  it  seems  to 


A  PEOPLE  WITHOUT  LAW  123 

are  stimulated  to  take  their  allotments  by  a  clause  that 
this  shall  be  a  ground  of  preference  in  appointments  on 
the  Indian  police  and  other  public  offices. 

But  the  allotment  may  leave  a  surplus  of  land  still  be- 
longing to  the  Indians.  The  Severalty  Act  provides  that 
after  the  lands  have  been  allotted  to  all  the  tribe,  or  sooner 
if  the  President  thinks  it  for  the  interest  of  the  tribe,  such 
portion  as  they  will  consent  to  sell  may  be  purchased 
by  the  United  States,  for  the  sole  purpose  of  selling  it 
again  (in  tracts  of  not  over  one  hundred  and  sixty  acres 
to  any  one  person)  to  actual  settlers,  who  are  not  to  have 
a  deed  until  after  five  years  of  occupancy.     The  money 

have  become  a  familiar  plirase.  Tliere  are,  however,  interesting  little 
signs,  in  the  correspondence  of  the  period,  of  a  certain  perplexity  that 
was  felt  by  foreigners  at  our  use  of  tlie  word.  See,  for  example,  in  1784, 
John  Adams's  Works,  viii.  218."  The  Dawes  Bill  and  the  Indians, 
J.  B.  Thayer,  61  Atlantic  Monthly,  318,  n. 

"  In  the  usage  of  English-speaking  people,  the  word  '  citizen,'  in  the 
sense  of  membership  of  the  State,  is  quite  modern.  '  The  term  "  citizen,"  ' 
said  Mr.  .Justice  Daniel,  in  a  dissenting  opinion  in  Rundle  v.  Delaware 
Canal  Co.,  14  Howard,  80,  97  (1852),  'will  be  found  rarely  occurring  in 
the  writers  of  English  law.'  The  word  is,  indeed,  familiar  enough  in 
our  older  reports,  law-books,  and  general  literature  as  designating  the 
member  of  a  borough.  For  instance,  in  R.  v.  Hanger,  1  Rolle,  138 
(1614-15),  the  rights  of  '  un  cittizen  de  London,'  are  elaborately  con- 
sidered by  Coke,  C.  J.,  with  many  references  to  the  Year  Books.  '  8ont 
5  sorts  de  Citizens,'  he  says,  etc.  So  Blackstone  (1  Com.  174)  :  'As  for 
the  (parliamentary)  electors  of  citizens  and  burgesses,  these  are  sup- 
posed to  be  the  mercantile  part  or  trading  interest  of  the  kingdom.'  And 
in  Shakespeare  {As  You  Like  It,  Act  II.,  sc.  1),  when  the  banished  Duke, 
having  proposed  to  '  go  and  kill  us  venison,'  adds,  — 

"  '  And  yet  it  irks  me  the  poor  dappled  fools. 

Being  native  burghers  in  this  desert  city. 

Should  in  their  own  confines,'  etc.,  — 

we  hear  just  afterwards  of  .Taques  moralizing  in  the  forest  over  a 
wounded  deer,  '  left  and  abandoned  of  his  velvet  friends  ' :  — 

"  '  Ay,  quoth  Jaques, 
Sweep  on.  you  fat  and  greasy  citizens.' 

"  The  proper  English  meaning  of  the  term  '  citizen  '  imported  member- 
ship of  a  borough  or  local  municipal  corporation.  The  usual  word  for  a 
man's  political  relation  to  the  monarch  or  the  State  was  '  subject.'  In 
France,  the  corresponding  phrase  citoyen,  concitoyen,  seems  to  have  long 
been  familiar,  in  the  modern  sense  of  the  word  '  citizen.'   .  .   . 

"In  the  Massachusetts  Constitution  (1780),  the  word  occurs,  but 
more  sparingly  than  would  be  expected  in  a  similar  document  now.  In 
the  Federal  Constitution,  prepared  in  1787,  it  is  freely  used. 

"  It  seems,  then,  to  have  been  the  events  which  happened  in  this 
country  in  the  eighth  and  ninth  decades  of  the  last  century  which  first 
brought  the  word  '  citizen,'  in  our  modern  sense  of  it,  into  familiar  Eng- 
lish speech.     See  Minor  v.  Happersett,  21  Wall.  162,  1G6. 

"  Compare  1  Blackstone's  Com.  366."     1  Thayer's  Const.  Cas.  459,  n.] 


124  LEGAL  ESSAYS 

is  to  be  held  by  the  United  States  for  the  benefit  of  the 
Indians.  One  observes  that  this  last  provision  for  obtain- 
ing the  surplus  land  requires  the  consent  of  the  tribe; 
the  allotment  does  not.  What  happens,  then,  if  this  con- 
sent is  not  given?  Evidently  the  tribe  and  tribal  owner- 
ship of  land  may  continue  for  some  purposes  after  .all  the 
allotments  are  made.  There  are  other  difficulties  in  the 
construction  of  the  act;   but  these  need  not  detain  us.^ 

Now  this  statute  puts  it  in  the  power  of  the  President 
to  forward  rapidly  the  absorption  of  the  Indians  into  our 
body  politic.  It  does  not  compel  him  to  do  it.  How  fast 
he  will  move  we  cannot  tell;  but  it  is  manifestly  possible 
for  him  to  move  a  great  deal  faster  than  is  wise.  It  cannot 
be  well  to  incorporate  into  our  Western  Territories  and 
States  the  bulk  of  the  Reservation  Indians  as  citizens 
within  any  short  time.  Observe  what  Senator  Dawes  said 
at  the  Mohonk  Conference  in  October,  1887,  soon  after  the 
passing  of  this  law:  "President  Cleveland  said  that  he 
did  not  intend,  when  he  signed  this  bill,  to  apply  it  to  more 
than  one  reservation  at  first,  and  so  on,  which  I  thought  was 
very  wise.  But  you  see  he  has  been  led  to  apply  it  to  half 
a  dozen.  The  bill  provides  for  capitalizing  the  remainder 
of  the  land  for  the  benefit  of  the  Indian,  but  the  greed 

^  [An  Important  amendment  to  the  Severalty  Act  is  the  Act  of  April 
23,  1904  (.?3  U.  S.  St.  at  Larpe,  297),  making  the  titles  of  Indians  to 
their  allotments  indefeasible  except  in  certain  cases  of  mistake  in  the 
allotment.  Of  this  Act  the  executive  committee  of  the  Indian  Rights 
Association  said  in  its  22d  annual  report,  page  21  :  "It  was  supposed  that 
the  Dawes  Severalty  Act  fully  protected  the  holdings  of  Indians,  but 
four  years  ago  the  Secretary  of  the  Interior  decided  that  he  had  author- 
ity to  cancel  an  allotment  at  any  time  prior  to  the  expiration  of  a 
twenty-five-year  trust  period.  When  this  claim  was  supported  by  a 
decision  of  the  United  States  Supreme  Court  [i.  p.,  if  It  should  be  so 
supported;  there  was  no  such  decision!,  the  allotment  of  every  Indian 
under  the  Severalty  Act  of  1887  was  virtually  subject  to  cancelation  at 
the  pleasure  of  the  Secretary  of  the  Interior.  Not  only  would  this  per- 
mit unscrupulous  men  to  resort  to  schemes  to  have  a  desirable  holding 
canceled,  but  the  insecurity  of  the  title  was  also  likely  to  destroy  all 
incentive  to  the  Indians  to  make  permanent  improvements  on  their 
allotments.  The  far-reaching  effect  for  good  of  this  measure  can  hardly 
be  overestimated." 

An  Act  of  March  2,  1907  (34  U.  S.  St.  at  Large.  1221),  permits  the 
Secretary  of  the  Interior  in  his  discretion  to  pay  to  any  individual 
Indian  upon  his  application  his  pro  rata  share  of  any  tribal  funds  on 
deposit  in  the  treasury  of  the  United  States.] 


A  PEOPLE  WITHOUT   LAW  125 

of  the  land-grabber  is  such  as  to  press  the  application  of 
this  bill  to  the  utmost.  There  is  no  danger  but  this  will 
come  most  rapidly,  —  too  rapidly,  I  think.  The  greed 
and  hunger  and  thirst  of  the  white  man  for  the  Indian's 
land  are  almost  equal  to  his  '  hunger  and  thirst  for  right- 
eousness.' That  is  going  to  be  the  difficulty  in  the  applica- 
tion of  this  bill.  He  is  going  to  press  it  forward  too  fast." 
And  the  Senator  added  this  advice :  "  Say  that  no  Indian 
shall  be  put  upon  a  horrfestead,  under  this  act,  until  he 
realizes  what  is  meant  by  it,  and  until  he  has  such  material 
round  about  him  as  will  enable  him  to  maintain  himself 
there,  and  then  let  him  work  out  his  own  destiny."  That 
was  wisely  said.^ 

In  order  to  guard  against  this  danger,  there  ought  to 
be  an  amendment  to  the  Severalty  Law,  requiring  for 
many  years  to  come  the  sort  of  evidence  of  fitness  which 
has  heretofore  been  demanded  in  several  cases  of  allot- 
ments authorized  by  treaty  or  special  law,  as  in  that  of 
certain  Wisconsin  Indians  in  1865,  and  certain  Kansas 
Indians  in  1873.  In  the  last-named  case  the  provision 
was  this :  "  If  any  adult  member  of  said  tribe  shall  desire 
to  become  a  citizen  of  the  United  States,  shall  prove  by  at 
least  two  competent  witnesses,  to  the  satisfaction  of  the 
Circuit  Court  of  the  United  States  for  the  State  of  Kansas, 

*  [The  able  and  devoted  agent  of  the  Indian  Rights  Association  at 
Washington,  S.  M.  Brosius,  Esq.,  writes  as  follows  on  June  10,  1907  : 
"  As  to  the  results  of  allotting  the  lands  in  severalty,  it  may  be  said 
that  considerable  hardship  has  resulted  and  will  yet  result  in  the  divi- 
sion of  these  large  tribal  estates,  and  the  Indians  need  the  care  and 
sympathy  of  those  interested  in  their  welfare.  Where  the  allotted  lands 
are  valuable  for  farming  purposes  but  little  privation  necessarily  follows, 
but  in  the  division  of  semi-arid  reservations  upon  which  an  allottee 
cannot  support  himself,  the  results,  I  fear,  will  be  that  as  soon  as  the 
allottee  is  enabled  under  the  law  to  dispose  of  the  allotment,  this  will 
no  doubt  be  done  in  a  large  degree,  and  the  Indians  for  the  most  part 
become  homeless  and  more  or  less  a  charge  upon  the  iBtate. 

"  It  is  to  be  hoped  that  the  better  sentiment  of  the  community  will 
insist  that  a  sufHciently  large  tract  of  these  poorer  reservation  lands 
will  be  reserved  for  the  use  of  the  allottees  in  common,  where  their 
small  herds  may  continue  to  graze.  When  it  is  understood  that  forty 
acres  of  the  lands  of  the  Standing  Rock  and  other  reservations  are  con- 
sidered necessary  to  sustain  one  animal,  the  importance  of  reserving  a 
large  tract  of  unallotted  land  for  the  use  of  the  stock  of  allottees  will 
be  realized."] 


126  LEGAL  ESSAYS 

that  he  or  she  is  sufficiently  intelligent  and  prudent  to 
manage  his  or  her  own  affairs,  and  has  for  the  period  of 
five  years  been  able  to  maintain  himself  or  herself  and 
family,  and  has  adopted  the  habits  of  civilized  life,  and 
shall  take  an  oath  of  allegiance  to  the  United  States,  as 
provided  by  law  for  the  naturalization  of  aliens,  he  or  she 
shall  be  declared  by  said  court  to  be  a  citizen  of  the 
United  States,  which  shall  be  entered  of  record,  and  a 
•certificate  thereof  given  to  said  ^arty."  This  sort  of  pro- 
vision, in  the  case  of  an  adult,  is  a  reasonable  and  fit  one. 
Without  it  there  is  no  sufficient  assurance  that  the  Indians 
will  not  be  crowded  out  into  the  world  much  too  fast.  I 
notice  that  our  excellent  Indian  commissioner,  General 
Morgan,  who  will  remain  in  his  present  office,  I  trust, 
until  he  is  promoted  to  a  higher  one,  expresses  the  very 
sensible  opinion,  in  his  last  report,  that  the  surplus  land 
ought  not  to  be  negotiated  for  until  the  allotments  are  all 
made.  Now  consider  what  the  pressure  to  get  hold  of 
these  lands  is  going  to  be.  "  The  greed  of  the  land- 
grabber,"  like  a  strong  mainspring,  will  be  forever  operat- 
ing to  secure  the  surplus  land.  If,  as  seems  wise,  the 
allotments  must  first  be  made,  then  it  will  be  forever 
operating  to  secure  allotments;  and  if,  as  the  law  is  now 
interpreted,  the  Indians  cannot  have  their  allotments  and 
patents  without  being  thereby  made  citizens  and  subject  to 
state  and  territorial  law,  the  pressure  of  this  dangerous 
and  constant  mainspring  will  be  transferred  to  that  point, 
and  will  be  felt  in  a  most  serious  way  in  hurrying  them  out 
from  under  the  protection  of  the  general  government  long 
before  they  should  go.  Consider  what  the  condition  of  a 
vast  proportion  of  them  still  is.  "  I  wish,"  said  the  agent 
at  the  Santee  Agency  in  Nebraska,  in  his  report  to  the 
commissioner  in  August  last,  "  to  impress  upon  the  depart- 
ment that  these  Indians  are  yet  as  overgrown  children. 
But  very  few  of  the  adults  are  able  to  speak  English,  and 
during  this  generation  will  need  more  or  less  encourage- 
ment and  training."    Remember  the  Messiah  craze,  and  the 


A  PEOPLE  WITHOUT  LAW  127 

state  of  advancement  in  civilization  that  it  indicated.  An 
agent  on  the  Sac  and  Fox  Reservation  in  Iowa  reported 
to  the  commissioner  last  August :  "  I  have  lived  near  these 
people  twenty  years,  and  I  can  see  but  very  little  improve- 
ment among  them  during  that  time  as  a  whole.  .  .  . 
(Their)  general  appearance  .  .  .  to-day  is  one  of  filth, 
ignorance,  laziness,  and  poverty." 

Again,  if  it  be  true,  as  it  is  thought  to  be  in  some 
quarters  (although  I  do  not  believe  it),  that  the  Indians, 
as  fast  as  they  get  their  allotments,  are  taken  by  this  law 
wholly  out  from  the  possibility  of  control  by  such  courts 
as  may  be  constitutionally  provided  on  the  reservations 
for  the  tribal  Indians  who  have  not  yet  had  allotments, 
then  in  that  respect  the  law  should  be  changed.  They 
should  not  be  so  taken  out.  They  should  be  held  under 
the  protection  of  the  United  States,  as  regulated  through 
courts  of  its  own  upon  the  reservations,  for  a  considerable 
period.^ 

Still  further,  since  the  Indian  land  cannot  be  taxed  for 
twenty-five  years,  the  United  States  government  should 
pay  the  local  taxes;  otherwise  these  poor  people,  when  en- 
larged, cannot  get  any  proper  help  from  the  authorities 
of  their  counties  or  States.  What  an  undesirable  neigh- 
bor will  he  be  who  pays  no  taxes,  and  expects  other  people 
to  tax  themselves  to  support  him  in  the  matter  of  roads, 
schools,  and  courts !  This  mischief  has  already  been  bitterly 
felt  among  the  Omahas  and  others.     Read,  for  instance, 


'  [In  Matter  of  Hefif,  197  U.  S.  488.  it  was  decided  tliat  Congress 
could  not  constitutionally  forbid  the  sale  of  liquor  to  an  Indian  who  had 
received  his  allotment,  on  the  ground  that  he  had  thereby  become  sub- 
ject to  the  laws  of  the  State,  and  had  been  placed  "  outside  the  reach  of 
police  regulations  on  the  part  of  Congress."  Soon  after  this  decision, 
and  presumably  in  consequence  of  It,  the  Act  of  May  8,  190C  (34  U.  S. 
St.  at  Large,  182),  was  passed  providing  that  Indians  receiving  allot- 
ments shall  not  become  citizens  until  the  trust  period  expires  and  the 
land  is  conveyed  to  the  Indian  in  fee.  The  Secretary  of  the  Interior  is 
authorized,  however,  to  issue  patents  in  fee  simple  at  any  time  to 
allottees  whom  he  deems  capable  of  managing  their  affairs.  This  Act 
further  expressly  provides  that  "  until  the  Issuance  of  fee  simple  patents 
all  allottees  to  whom  trust  patents  shall  hereafter  be  issued  shall  be 
subject  to  the  exclusive  jurisdiction  of  the  United  States."] 


128  LEGAL  ESSAYS 

what  the  agent  at  the  Sisseton  Reservation  in  South  Dakota 
says,  in  his  report  of  September  29,  1890,  to  Commissioner 
Morgan.  He  is  speaking  of  Indians  who  have  lately  been 
made  citizens.  "  In  this  connection  I  will  state  that  al- 
though the  law  of  Congress  and  the  department  authori- 
ties direct  these  Indians  to  the  county  courts  for  the 
settlement  of  all  minor  crimes  and  civil  cases,  still  it  is 
apparent  that  this  course  at  present  is  impracticable.  The 
authorities  of  the  counties  decline  to  audit  any  expenses 
of  prisoners,  paupers,  or  litigants  who  hold  lands  under 
the  allotment  act.  All  the  information  1  have  upon  this 
subject  convinces  me  that  Indians  and  mixed  bloods  who 
hold  lands  under  the  allotment  act  will  not  have  the  same 
privileges  as  the  white  man  in  the  county  courts.  Nor 
will  prisoners',  paupers',  and  litigants'  expenses  be  paid." 
Under  the  law  as  it  now  stands  this  result  is  almost  un- 
avoidable. Of  course,  also,  education  must  be  provided 
for,  and  we  may  well  second  and  applaud  the  far-seeing 
plans  of  General  Morgan  to  that  end.  I  only  wish  that 
he  would  insist  more  upon  one  point,  namely,  that  no 
education  can  be  better  for  these  Indians,  as  a  prepara- 
tion for  the  condition  of  citizenship,  than  practice  in  polit- 
ical usages  and  duties,  —  a  chance,  for  instance,  to  vote 
in  town  meeting  and  serve  on  a  jury,  a  chance  to  spend 
their  own  money  and  earn  their  own  living,  with  the 
ordinary  security  and  restraints  of  legal  obligation  and 
legal  right,  the  ordinar}'  stimulus  of  competition,  and  the 
ordinary  hope  of  gain.  There  is  no  education,  there  is 
no  civilizing  agency,  so  important  as  this  for  the  present 
generation  of  Indians  who  are  beyond  childhood,  and  so 
for  all  of  them  as  they  pass  that  line. 

While,  then,  this  great  measure,  the  Severalty  Law,  in 
course  of  time  is  going  to  put  an  end  to  the  strange  anomaly 
of  the  Indian  situation,  in  that  form  of  it  which  now 
presses  upon  our  attention,  —  that  is,  as  touching  the  bulk 
of  the  tribal  Indians  outside  the  so-called  civilized  tribes, 
—  the   process   must   inevitably   take   many   years.      How 


A  PEOPLE  WITHOUT  LAW  129 

many?  The  Commissioner  of  Indian  Affairs  informed  me 
recently  that  in  the  four  years  and  a  half  (nearly)  since 
the  Severalty  Law  was  passed  about  12,752  allotments 
have  been  made  under  its  provisions,  and  about  1437 
patents  have  been  issued,  —  say  at  the  average  of  2800 
allotments  a  year,  and  300  patents.  Patents,  it  will  be 
remembered,  are  issued  upon  the  approval  of  allotments 
by  the  Secretary  of  the  Interior.  That  leaves  about  thir- 
teen times  as  many  more  allotments  to  be  made,  and  the 
time  required  for  winding  up  the  reservations,  at  that 
rate,   would   be   nearly   sixty   years.^      Suppose    it   to   be 

*  ["  But  even  if  we  assume  that  the  law  will  be  rapidly  put  in  force, 
it  will  take  a  considerable  number  of  years  before  it  accomplishes  its 
purposes.  What  will  be  the  situation  in  the  interval?  In  order  to 
answer  that  question,  it  must  be  observed  what  it  is  that  the  law  does 
not  do. 

"  1.  It  does  not  cover  the  case  of  all  the  tribal  Indians.  Ten  or  eleven 
tribes  are  excepted,  including  the  so-called  '  civilized  tribes '  in  the  In- 
dian Territory.  Very  likely  this  may  have  been  a  wise  omission,  —  at 
any  rate  in  the  main  ;  but  the  fact  continues,  and  should  be  kept  in 
mind,  that  many  thousands  of  Indians,  perhaps  a  quarter  or  a  third  of 
them  all,  are  not  touched  by  the  severalty  law. 

"  2.  While  it  provides  for  the  gradual  picking  off  of  members  of  the 
tribes,  and  planting  them,  here  and  there,  on  the  reservations  as  citizens 
and  land-owners,  it  provides  them  with  no  courts  there,  no  means  what- 
ever of  enforcing  their  rights  there,  and  no  system  of  law.  There  is 
little  or  no  law  on  the  reservations  now  except  the  vanishing  ti'aditions 
of  tribal  authority.  («)  Certainly  an  Indian  lacks  much  who  is  set  up 
in  the  middle  of  a  reservation  which  may  be  several  times  as  large  as 
Massachusetts  ;  endowed,  to  be  sure,  with  citizenship  and  land,  but  with 
no  courts  to  appeal  to,  and  no  organized  political  society  about  him. 
He  has  lost  his  old  surroundings,  and  has  not  yet  acquired  any  new 
ones  ;   he  has  passed  into  a  sort  of  limbo. 

'  As  far  from  help  as  limbo  is  from  bliss.' 

"  3.  It  leaves  these  land-owners  with  little  power  to  use  their  land. 
They  cannot  let  it  on  shares,  or  let  it  at  all,  or  make  any  contract  about 
it,  or  make  an  exchange. 

"  4.  There  is  no  arrangement  for  securing  to  these  new  citizens  the 

(a)  If  one  were  to  speak  with  minute  accuracy,  he  would  have  to 
except  a  certain  amount  of  criminal  jurisdiction  in  the  United  States, 
and  in  one  or  two  States  a  claim,  at  least  on  their  part,  to  something 
more  than  that ;  but  such  laws  are  only  enforcible  by  traveling  to 
courts  outside  the  reservation.  Mention  would  also  have  to  be  made  of 
the  good  and  sensible  endeavors  on  some  reservations  to  administer  a 
rude  justice  through  the  agents.  But  such  attempts  have  no  fixed  basis 
of  law.  Indians,  when  off  their  reservation,  are  as  fully  protected  by 
and  amenable  to  the  laws,  and  as  fully  entitled  to  sue  in  the  courts,  as 
any  other  class  of  persons  who  are  not  citizens  of  the  United  States  ; 
for  example,  as  a  newly  landed  Englishman  or  any  Chinaman.  The 
present  writer  may  be  permitted  to  refer  to  a  fuller  consideration  of  this 
question  in  the  Harvard  Law  Review,  i.  149. 

9 


130  LEGAL  ESSAYS 

half  that  time,  —  this  is  quite  too  long  to  allow  us  to  yield 
to  the  arguments  of  those  who  say :  "  Let  the  matter  alone ; 
it  is  a  vanishing  state  of  things;  all  will  have  passed 
away  before  you  can  mend  matters."  During  this  process 
of  "  vanishing,"  such  bloody  fruits  of  our  present  system 
are  showing  themselves,  and  will  continue  to  show  them- 
selves, as  the  dreadful  outbreak  and  slaughter  of  last  winter. 
How  soon  we  can  mend  matters  depends  on  ourselves  and 
our  representatives  at  Washington.  Matters  can  be  mended 
at  the  next  session  of  Congress  if  the  people  sternly  demand 
it. 

What  then  shall  we  do?  (1)  We  must  not  leave  things 
alone  for  one  or  two  generations,  to  be  worked  out  by  the 
Severalty  Law  unaided.  We  cannot  do  that.  See  what 
General  Morgan  says  of  the  existing  system,  in  his  last 
report:  "The  entire  system  of  dealing  with  them  (the 
Indians)  is  vicious,  involving  as  it  does  the  installing  of 
agents  with  semi-despotic  power  over  ignorant,  supersti- 
tious, and  helpless  subjects;  the  keeping  of  thousands  of 
them  on  reservations  practically  as  prisoners,  isolated  from 
civilized  life,  and  dominated  by  fear  and  force;  the  issue 
of  rations  and  annuities,  which  inevitably  tends  to  breed 

laying  out  of  roads,  or  any  other  public  Improvements.  Since  their 
land  is  inalienable  for  a  quarter  of  a  century  and  untaxable,  there  Is 
small  inducement  to  any  State  or  county  to  do  much  for  them.  Trouble 
has  already  arisen  on  this  score,  in  the  case  of  lands  allotted  under 
previous  laws. 

"  5.  The  law  makes  no  provision  for  the  education  of  these  new 
citizens  or  their  children. 

"  6.  It  leaves  the  whole  reservation  system  untouched.  Outsiders  are 
still  to  be  kept  out ;  only  the  agents  and  political  officials  from  Wash- 
ington and  such  as  they  admit  may  come  in.  Only  the  licensed  Indian 
trader  can  do  business  there.  The  new  citizens  will,  indeed,  be  In  the 
same  position  on  the  reservation  as  any  of  us  would  be  if  we  were  to 
go  out  and  live  there.  But  what  would  that  be?  We  should  be  full 
citizens,  to  be  sure,  with  liberty  to  move  away  if  we  liked.  But  while 
we  chose  to  stay  there  we  should  find  the  air  not  very  Invigorating ;  we 
should  be  subject  to  all  the  restraints  and  limitations  upon  our  full 
rights  which  are  incidental  to  maintaining  a  non-Intercourse  reservation 
system ;  we  should  find  there  the  same  prevailing  barbarism,  the  same 
sickly,  stunted,  abortive  civilization,  the  same  absence  of  trade  or  com- 
merce, the  same  mischievous  and  unfettered  political  control,  denying 
civil  and  political  rights  to  the  tribal  Indians  who  have  not  become 
citizens,  and  making  beggars  of  them."  The  Dawes  Bill  and  the  In- 
dians, J.  B.  Thayer,  61  Atlantic  Monthly,  320,  321.] 


A  PEOPLE  WITHOUT  LAW  131 

pauperism;  the  disbursement  of  millions  of  dollars'  worth 
of  supplies  by  contract,  which  invites  fraud  ;•  the  main- 
tenance of  a  system  of  licensed  trade,  which  stimulates 
cupidity  and  extortion." 

If  it  be  thought  that  a  wise  and  steady  administration 
of  the  present  system  will  answer  well  enough,  I  reply  that 
we  cannot  have,  under  such  a  government  as  ours,  a  steady, 
firm,  uniform  administration  of  the  merely  political  sort, 
in  the  case  of  so  complicated  a  matter  as  our  Indian 
affairs.  Good  administration  is  the  weak  point  in  our 
form  of  government;  for  the  proof  of  that  it  is  enough 
to  appeal  to  the  record  of  a  hundred  years.  We  may 
mend  and  patch,  but  the  result  will  be  bad  oftener  than 
good. 

(2)  If  it  be  said,  "Very  well,  let  us  hurry  through  the 
allotments;  let  us  do  as  was  done  with  the  slaves  after 
the  war,  remove  all  civil  disabilities  at  once  and  set  up  the 
Indians  forthwith  as  citizens,"  I  have  already  dealt  with 
that  sort  of  suggestion.  But  let  me  say  a  word  or  two 
more.  This  is,  indeed,  the  kind  of  short  cut  which  suits 
a  democratic  people  when  it  is  once  aroused  to  the  neces- 
sity of  having  a  change ;  then  the  tendency  is  to  go  straight 
to  the  mark.  One  reason  for  this  is  the  instinctive  appre- 
hension, in  such  a  community,  of  its  own  weakness  in 
administering  any  complicated  system  or  adhering  long 
and  steadily  to  a  purpose.  The  slow  method  (it  says  to 
itself),  the  method  of  gradual  approach,  is  not  safe.  Ac- 
cordingly, we  all  know  that  this  sort  of  swift  despatch 
has  been  urged.  It  is  the  way  which  preoccupied  and  im- 
patient minds  are  apt  to  recommend;  and  some  others 
also.  It  was  the  one  preferred  by  that  excellent  soldier 
and  friend  of  the  Indians,  General  Crook.  Undoubtedly 
it  has  its  advantages.  To  give  the  Indians  the  ballot 
at  once  would  do  for  them  what  was  done  for  the  slaves ; 
it  would  put  into  their  hands  a  weapon  which  would  power- 
fully help  them  in  working  out  their  political  salvation 
among  their  neighbors.     Whatever  temporary  disturbances 


132  LEGAL  ESSAYS 

may  take  place,  the  ultimate  result  is  certain,  that  he  who 
has  the  baHot  is  one  who  will  be  protected  from  abuse. 
Such  was  General  Crook's  reasoning  about  it. 

But  this  course,  as  I  have  said,  has  insuperable  objec- 
tions. The  great  body  of  the  tribal  Indians  are  totally 
unfit  for  the  ballot,  and  it  would  be  inexcusable  to  force 
such  a  body  of  voters  suddenly  upon  the  States  where 
they  live.  It  was  bad  enough,  although  politically  neces- 
sary, to  do  this  sort  of  thing  at  the  end  of  the  war,  in 
communities  which  had  revolted,  staked  all  upon  war,  and 
lost.  It  would  be  inexcusable  to  do  it  in  the  midst  of  a 
loyal  population,  who  are  entitled  to  have  their  wishes  con- 
sulted by  the  government.  And  above  all,  it  would  be  an 
abandonment  by  the  government  of  its  highest  present  duty 
to  the  red  men,  that  of  governing  and  sheltering  them.  In 
view  of  what  has  happened  at  the  South  with  the  negroes, 
and  of  the  well-known  local  hostility  to  the  Indians  at  the 
West,  it  cannot  be  doubted  that  they  would  suffer  much. 
Remember  that  with  the  giving  of  full  citizenship  there 
would  take  place  a  loss  of  all  power  in  the  federal  govern- 
ment to  legislate  specially  for  them.  Nothing  is  clearer 
than  that  they  need,  and  will  need  for  a  good  while,  the 
very  careful  and  exceptional  protection  of  the  nation.  The 
power  to  give  this  special  and  exceptional  protection  exists 
now,  growing  out  of  the  strange  political  situation  which 
I  have  expounded;  and  it  is  the  one  best  thing  there  is 
about  the  present  state  of  things.  We  must  seize  upon 
this  and  use  it. 

(3)  How  shall  we  use  it?  That  is  the  question  that 
still  recurs.  We  use  our  power  now  in  dealing  with  the 
Indians  by  this  vile  process  which  pretends  to  leave  them 
to  govern  themselves,  and  yet,  in  its  actual  application, 
denies  them  liberty  and  shuts  them  up  on  reservations; 
pauperizes  them ;  insults  and  breaks  down  all  of  law, 
custom,  and  religion  that  they  have  inherited  from  their 
fathers  and  have  been  taught  to  venerate ;  excludes  civili- 
zation,  trade,   law ;    and   subjects  them   to  the   unsteady 


A  PEOPLE  WITHOUT  LAW  133 

tyranny  of  the  politicians.  This  way  of  using  our  powel 
should  be  at  once  abandoned.  But  there  is  a  wise  way 
to  use  it,  and  I  am  glad  to  say  that  while  Congress  has 
lagged  the  Indian  commissioners  have  made,  since  1882, 
a  slight  but  useful  beginning  in  the  right  direction.  Upon 
some  agencies  the  agent  is  directed  to  appoint  Indians 
to  hear  and  judge  the  complaints  of  their  fellows  against 
one  another,  subject  to  the  revision  of  the  agent  himself, 
and  ultimately  of  the  commissioner.  The  testimony  is 
uniform,  I  think,  as  to  the  salutary  and  steadying  effect 
of  these  "'  courts."  Of  course  they  are  not  courts  in  our 
ordinary  sense,  for  they  do  not  administer  law,  but  merely 
certain  rules  of  the  Indian  Department.  They  bear  about 
the  same  relation  to  courts,  in  the  proper  sense  of  the 
term,  that  courts-martial  do;  they  are  really  a  branch  of 
the  executive  department.  But  their  effect  in  educating 
the  Indians  and  assisting  the  department  in  its  heavy  bur- 
den of  government  has  been  such  as  to  point  clearly  to  the 
wisdom  of  following  up  this  good  beginning  (the  sugges- 
tion of  Commissioner  Hiram  Price,  I  believe)  and  giving 
the  Indians  real  courts  and  real  law.  This  is  what  we 
must  do,  —  extend  law  and  courts  of  justice  to  the 
reservations. 

A  simple  thing,  indeed,  is  it  not?  Does  this  seem  to 
my  reader,  I  wonder,  as  it  does  to  me,  obviously  just, 
obviously  wise,  obviously  expedient?  Yet  our  legislators 
at  Washington  let  it  linger  year  after  year,  and  we  cannot 
get  it  done.  We  must  demand  of  them  that  they  no  longer 
neglect  it,  —  that  they  abandon  any  attitude  of  obstruc- 
tion upon  this  subject,  any  mistaken  fancy  that  the  Sever- 
alty Law  has  actually  done  all  that  has  been  made  possible 
by  it.  I  express  the  conviction  not  merely  of  one  person, 
but  of  a  vast  number  of  the  friends  of  the  Indians;  in 
declaring  that  the  one  most  pressing  and  vital  necessity 
to-day,  in  this  matter,  is  that  of  bringing  the  Indians  and 
all  their  affairs  under  the  steady  operation  of  law  and 
courts.     This  is  saying  no  new  thing.     Many  of  us  who 


134  LEGAL  ESSAYS 

had  the  honor  of  advocating  the  Severalty  Law  before  it 
was  passed  always  coupled  it  with  the  demand  for  extend- 
ing law  to  the  Indians.  This  necessity  has  long  been  ob- 
vious ;  indeed,  it  sickens  one  to  look  back  and  see  how 
uniform  and  how  pressing  has  been  the  cry  for  this,  during 
many  years,  as  the  thing  most  needful. 

Let  me  repeat  some  of  these  utterances.  Nearly  twenty 
years  ago,  in  1873,  the  Indian  commissioner  urged  this 
matter  in  his  report,  and  again,  in  1874,  pressed  it,  with 
careful  specific  recommendations  for  establishing  a  system 
of  law  among  the  Indians.  In  1876  the  Indian  commis- 
sioner (J.  Q.  Smith)  said  in  his  annual  report:  "My 
predecessors  have  frequently  called  attention  to  the  start- 
ling fact  that  we  have  within  our  midst  275,000  people, 
the  least  intelligent  portion  of  our  population,  for  whom 
we  provide  no  law,  either  for  their  protection  or  for  the 
punishment  of  crime  committed  among  themselves.  .  .  . 
Our  Indians  are  remitted  by  a  great  civilized  government 
to  the  control,  if  control  it  can  be  called,  of  the  rude 
regulations  of  petty  ignorant  tribes.  Year  after  year  we 
expend  millions  of  dollars  for  these  people,  in  the  faint 
hope  that,  without  law,  we  can  civilize  them.  That  hope 
has  been  to  a  great  degree  a  long  disappointment,  and 
year  after  year  we  repeat  the  folly  of  the  past.  That  the 
benevolent  efforts  and  purposes  of  the  government  have 
proved  so  largely  fruitless  is,  in  my  judgment,  due  more 
to  its  failure  to  make  these  people  amenable  to  our  laws 
than  to  any  other  cause,  or  to  all  other  causes  combined. 
I  believe  it  to  be  the  duty  of  Congress  at  once  to  extend 
over  Indian  reservations  the  Jurisdiction  of  United  States 
courts,  and  to  declare  that  each  Indian  in  the  United 
States  shall  occupy  the  same  relation  to  law  that  a  white 
man  does.  ...  I  regard  this  suggestion  as  by  far  the 
most  important  which  I  have  to  make  in  this  report." 

In  1877  the  wise  and  devoted  Bishop  Hare  said,  in  a 
passage  which  was  quoted  at  length  by  the  Indian  com- 
missioner in  his  report  of  1883  with  renewed  recommenda- 


A  PEOPLE  WITHOUT   LAW  135 

tions :  "  Civilization  has  loosened,  in  some  places  broken, 
the  bonds  which  regulate  and  hold  together  Indian  society 
in  its  wild  state,  and  has  failed  to  give  the  people  law  and 
officers  of  justice  in  their  place.  This  evil  still  continues 
unabated.  Women  are  brutally  beaten  and  outraged; 
men  are  murdered  in  cold  blood ;  the  Indians  who  are 
friendly  to  schools  and  churches  are  intimidated  and  preyed 
upon  by  the  evil-disposed;  children  are  molested  on  their 
way  to  school,  and  schools  are  dispersed  by  bands  of  vaga- 
bonds: but  there  is  no  redress.  This  accursed  condition 
of  things  is  an  outrage  upon  the  one  Lawgiver.  It  is  a 
disgrace  to  our  land.  It  should  make  every  man  who  sits 
in  the  national  halls  of  legislation  blush.  And,  wish  well 
to  the  Indians  as  wf  may,  and  do  for  them  what  we  will, 
the  efforts  of  civil  agents,  teachers,  and  missionaries  are 
like  the  struggles  of  drowning  men  weighted  with  lead 
as  long  as,  by  the  absence  of  law,  Indian  society  is  left 
without  a  base."  In  that  same  year  (1877)  Indian  agents 
declared  over  and  over  again  that  a  system  of  law  on  the 
reservations  was  the  great  need.  "  By  far  the  greatest 
need  of  this  agency,"  said  one  of  them,  "  is  civil  law. 
Give  us  civil  law  and  power  to  execute  it."  In  1878  the 
Indian  commissioner  in  his  report  quoted  Joseph,  the  fa- 
mous and  very  able  Nez  Perce  chief,  as  saying  that  "  the 
greatest  want  of  the  Indians  is  a  system  of  law  by  which 
controversies  between  Indians  and  between  Indians  and 
white  meii  can  be  settled  without  appealing  to  physical 
force.  .  .  .  Indians  .  .  .  understand  the  operation  of  laws, 
and  if  there  were  any  statutes  the  Indians  would  be  per- 
fectly content  to  place  themselves  in  the  hands  of  a  proper 
tribunal,  and  would  not  take  the  righting  of  their  wrongs 
into  their  own  hands  or  retaliate,  as  they  now  do,  without 
the  law." 

How  many  of  my  readers  have  ever  read  that  wonderful, 
most  moving  story  of  this  same  Chief  Joseph,  sent  by 
Bishop  Hare  to  the  "  North  American  Keview,"  and  pub- 
lished there  in  April,  1879?    In  introducing  it  the  bishop 


136  LEGAL  ESSAYS 

expressed  his  own  appreciation  of  it  by  saying,  "  I  wish  that 
I  had  words  at  command  in  which  to  express  adequately 
the  interest  with  which  I  have  read  the  extraordinary 
narrative  which  follows."  The  emphasis  that  Joseph  lays 
upon  the  need  of  law  is  striking.  "  There  need  be  no 
trouble,"  he  declares.  "  Treat  all  men  alike.  Give  them 
all  the  same  law.  Give  them  all  an  even  chance  to  live 
and  grow.  ...  I  only  ask  of  the  government  to  be  treated 
as  all  other  men  are  treated.  ...  I  know  that  my  race 
must  change.  We  cannot  hold  our  own  with  the  white 
race  as  we  are.  We  only  ask  an  even  chance  to  live  as 
other  men  live.  .  .  .  We  ask  that  the  same  law  shall  work 
alike  on  all  men.  If  the  Indian  breaks  the  law,  punish 
him  by  the  law.  If  the  white  man  brgaks  the  law,  punish 
him  also."  Bishop  Hare  enforces  this  request.  "  Indian 
chiefs,"  he  says,  "  however  able  and  influential,  are  really 
without  power,  and  for  this  reason,  as  well  as  others,  the 
Indians  .  .  .  should  at  the  earliest  practicable  moment 
be  given  the  support  and  protection  of  our  government  and 
of  our  law."  In  March  of  the  same  year  (1879)  General 
Miles  printed  an  article  on  The  Indian  Problem  in  the 
"  North  American  Eeview,"  in  which  he  pressed  the  need  of 
establishing  law  and  courts  of  Justice  among  the  Indians. 
Hq  quoted  Chief  Joseph's  words  that  "  the  greatest  want 
of  the  Indians  is  a  system  of  law,"  etc.,  and  added,  "  Do 
we  need  a  savage  to  inform  us  of  the  necessity  that  has 
existed  for  a  century  ?  " 

In  1881  General  Crook,  General  Miles,  and  others,  as 
commissioners  appointed  by  the  President  to  investigate 
certain  matters  relating  to  the  Ponca  tribe,  closed  their 
report  as  follows :  "  In  conclusion  we  desire  to  give  ex- 
pression to  the  conviction  forced  upon  us  by  our  investiga- 
tion of  this  case  that  it  is  of  the  utmost  importance  to 
white  and  red  men  alike  that  all  Indians  should  have  an 
opportunity  of  appealing  to  the  courts  for  the  protection 
and  vindication  of  the  rights  of  person  and  property.  In- 
dians cannot  be  expected  to  understand  the  duties  of  men 


A  PEOPLE  WITHOUT   LAW  137 

living  under  the  forms  of  civilization  until  they  know, 
by  being  subject  to  it,  the  authority  of  stable  law  as  ad- 
ministered by  the  courts,  and  are  relieved  from  the  un- 
certainties and  oppression  frequently  attending  subjection 
to  arbitrary  personal  authority." 

In  1884  Miss  Alice  Fletcher  said,  in  a  public  address 
wholly  devoted  to  the  need  of  law  on  the  Indian  reserva- 
tions :  "  Were  the  Indians  as  keen  for  crime  as  many 
believe  them  to  be,  not  a  human  being  could  be  safe  in 
their  midst  during  the  present  hiatus  between  the  old  tribal 
law  and  our  failure  to  give  the  protection  of  the  courts. 
Although  matters  are  not  at  their  worst,  they  are  bad 
indeed,  and  it  is  almost  futile  to  try  to  build  up  a  people 
when  the  very  stay  and  supports  of  industry  and  morality 
are  lacking."  These  remarks  were  accompanied  by  con- 
vincing illustrations  of  their  truth  drawn  from  her  experi- 
ence among  the  Omahas.  In  Miss  Fletcher's  learned  and 
thorough  Special  Eeport  to  the  Bureau  of  Education  on 
Indian  Education  and  Civilization,  published  as  a  Senate 
Document  by  the  United  States  in  1888  (page  143),  she 
comments  again  upon  "  the  need  for  recasting  the  entire 
legal  position  of  Indians  towards  the  state  and  towards 
each  other,  and  of  permitting  the  laws  of  the  land  to  be 
fully  extended  over  all  the  various  reservations  and  tribes." 

For  many  years  that  admirable  association  in  Phila- 
delphia of  which  Mr.  Herbert  Welsh  is  secretary  has  urged 
this  matter,  and  as  early  as  eight  or  ten  years  ago  had 
prepared  a  bill  which  embodied  it.  In  a  report  of  Mr. 
Herbert  Welsh  to  his  society,  made  in  1885,  he  presses 
(to  quote  his  own  words)  "the  immediate  introduction 
of  law  upon  the  reservations."  For  years,  also,  the  Bos- 
ton Indian  Citizenship  Committee  has  devoted  itself  to 
efforts  for  accomplishing  this  purpose.  In  February  last 
it  issued  a  memorial,  in  which  the  following  language 
was  used :  "  The  Boston  Indian  Citizenship  Committee, 
in  view  of  recent  events  at  the  West,  renews  its  solemn 
appeal  to   Congress  and  the  country  for  the  immediate 


138  LEGAL  ESSAYS 

extension  of  the  ordinary  laws  of  the  land  over  the  Indian 
reservations,  ,  .  .  We  desire  to  record  our  belief  that  this 
country  has  no  duty  towards  the  Indians  so  solemn  and 
so  instant  as  that  of  bringing  these  poor  people  under  the 
protection  and  the  control  of  the  ordinary  laws  of  the 
land."  Year  after  year  the  same  appeal  has  come  from 
the  Mohonk  Conference.^ 

So  long,  so  uniform,  so  weighty,  so  urgent,  has  been 
this  appeal  for  a  government  of  law  for  the  Indians,  and 
yet  the  thing  is  not  done.  Why  ?  Perhaps  the  chief  reasons 
are  three:  (1)  That  there  has  been  no  one  man  in  Con- 
gress who  was  deeply  impressed  with  the  importance  of 
this  particular  step.  Some  men  there  appear  to  think 
the  Severalty  Law  a  finality,  instead  of  one  great  step 
to  be  followed  by  others.  (2)  That  the  whole  Indian 
question  gets  little  hold  on  public  men,  and  is  crowded 
aside  by  tariffs  and  silver  and  President-making  and  office- 
jobbing  and  pension-giving.  (3)  That  so  far  as  ques- 
tions of  Indian  policy  get  any  attention,  this  is  spent  on 
matters  of  detail,  and  in  administering  and  patching  the 
present  system.  But,  I  may  be  asked,  do  you  call  all 
this  effort  for  the  education  of  the  Indians  and  their  reli- 
gious teaching,  and  the  improvement  of  the  civil  service 
among  them,  —  all  these  things  matters  of  detail  ?  Well, 
it  would  be  an  extravagance  to  say  that,  and  yet  some- 
times one  can  best  convey  his  meaning  and  best  intimate 
the  truth  by  an  extravagance.  I  am  almost  ready  to  an- 
swer. Yes,  I  do.  This,  at  any  rate,  I  will  say:  It  is  as 
true  now  as  it  was  fifteen  years  ago,  when  Indian  Com- 
missioner J.  Q.  Smith  put  it  on  record  in  his  annual  report : 
"  That  the  benevolent  efforts  and  purposes  of  the  govern- 
ment have  proved  so  largely  fruitless  is  .  .  .  due  more  to 

'  And,  finally,  since  this  article  was  written,  the  American  Bar 
Association,  after  listening  to  a  valuable  paper  on  this  subject  by  Mr. 
William  B.  Hornblower,  of  New  York,  and  after  a  debate  In  which  the 
leaders  of  that  body  participated,  on  August  26  last  unanimously  re- 
solved :  "  It  is  the  opinion  of  this  association  that  the  United  States 
should  provide,  at  the  earliest  possible  moment,  courts  and  a  system  of 
law  for  the  Indian  reservations." 


A  PEOPLE  WITHOUT  LAW  139 

its  failure  to  make  these  people  amenable  to  our  laws  than 
to  any  other  cause,  or  to  all  other  causes  combined."  It 
is  as  true  to-day  as  it  was  fourteen  years  ago  when  Bishop 
Hare  said  it  first,  and  as  it  was  eight  years  ago  when  the 
Indian  commissioner  quoted  it  with  approval  in  his  annual 
report,  and  seven  years  ago  when  Miss  Fletcher  quoted 
and  indorsed  it,  that,  "  Wish  well  to  the  Indians  as  we  may, 
and  do  for  them  what  we  will,  the  efforts  of  civil  agents, 
teachers,  and  missionaries  are  like  the  struggles  of  drown- 
ing men  weighted  with  lead  as  long  as,  by  the  absence 
of  law,  Indian  society  is  left  without  a  base."  It  is  as 
true  now  as  it  was  thirteen .  years  ago,  when  the  Indian 
commissioner  quoted  it  from  one  of  the  ablest  of  the 
Indian  chiefs,  that  "  the  greatest  want  of  the  Indians  is 
a  system  of  law  by  which  controversies  between  Indians 
and  between  Indians  and  white  men  can  be  settled  with- 
out an  appeal  to  physical  force." 

Will  not  my  reader  agree  with  me,  then,  in  saying  that 
the  time  has  come  when  all  causes  of  obstruction  and 
delay  must  give  way;  when  (1)  we  must  find  or  place 
some  men  at  Washington  who  are  profoundly  impressed 
with  the  necessity  of  a  government  of  law  for  the  Indians; 
when  (2)  we  must  cause  it  to  be  understood  that  this 
matter  is  no  longer  to  be  shoved  aside  by  any  question 
whatever;  and  when  (3),  in  dealing  with  the  Indian 
question,  this  matter  of  establishing  law  among  the  In- 
dians must  take  precedence  for  the  time  being  of  all  other 
aspects  of  the  subject?  The  Indian  associations  of  the 
country  and  all  individual  friends  of  the  Indian  should 
now  gather  themselves  together  and  concentrate  their  efforts 
for  a  time  upon  this  single  point.  They  have  very  great 
influence  when  they  unite;  they  can,  if  they  please,  make 
such  an  appeal  to  Congress  and  the  Executive  as  will 
speedily  be  heeded. 

Since  the  spring  of  1888  a  carefully  prepared  bill  for 
accomplishing  the  objects  I  have  named  has  been  pending 
in  the  Senate  of  the  United  States.     It  has  the  support 


140  LEGAL  ESSAYS 

of  some  of  the  best  lawyers  in  the  country.  Tt  was  pre- 
pared by  a  committee  of  the  Mohonk  Conference,  and 
has  been  steadily  supported  by  the  leading  Indian  associa- 
tions. That  bill,  or  something  better,  should  be  passed  at 
the  next  session  of  Congress. 


GELPCKE  V,  DUBUQUE;  FEDERAL  AKD 
STATE   DECISIONS 

[This  article  appeared  in  1891  in  the  Harvard  Law  Review  (4 
Harv.  Law  Rev.  311),  and  is  best  explained  by  the  following  note 
which  accompanied  it.  "  In  assenting  to  a  request  to  furnish 
the  following  paper  for  publication,  the  writer  is  aware  that  the 
form  of  it  requires  a  word  of  explanation.  In  examining  a  dis- 
puted or  obscure  case  it  is  sometimes  found  convenient,  at  Law 
Schools,  to  give  the  case  out  for  argument  at  a  Moot  Court,  as 
if  upon  a  rehearing.  Such  a  proceeding  often  involves  anach- 
ronisms, e.g.,  in  the  citation  of  later  eases;  but  it  has  its  advan- 
tages. The  case  of  Gelpcke  v.  Dubuque  (1  Wall.  175)  was  thus 
given  out  lately,  here  at  Cambridge,  and  what  follows  was  read, 
last  June,  as  the  opinion  of  the  court  in  deciding  that  case.  The 
writer  is  the  more  willing  to  have  it  printed,  because,  in  sustaining 
the  doctrine  of  the  court,  as  an  original  question,  he  found  himself 
arriving  at  an  unexpected  result,  and  also  beciiuse  the  opinion  here 
given  makes  one  or  two  suggestions  which  appear  to  him  important, 
and,  at  the  same  time,  to  be  less  insisted  upon  in  the  discussion 
of  this  case  than  they  should  be.  Probably  the  general  judgment 
of  the  legal  profession  would  be  that  the  opinion  in  Grclpcke  v. 
Dubuque  was  a  very  inadequate  one.  Certainly  it  was  a  great 
while  before  the  Supreme  Court,  in  its  steady  adherence  to  the 
rule  laid  down  in  that  case,  succeeded  in  commending  it  to  the 
approval  of  the  profession.  Among  the  many  keen  and  able  criti- 
cisms of  this  rule,  reference  may  be  made  to  those  of  Mr.  Justice 
Holmes,  in  his  notes  to  the  twelfth  edition  of  Kent's  Commentaries; 
to  an  article  by  Hon.  Henry  Reed,  in  9  American  Law  Review,  381 ; 
to  Mr.  G.  W.  Pepper's  '  Border  Land  of  Federal  and  State  Deci- 
sions; '  and  to  Mr.  W.  M.  Meigs's  articles  in  29  Central  Law  Jour- 
nal, 465,  485,  on  certain  questions  growing  out  of  what  he 
designates  as  '  the  Federal  doctrine  of  "  General  Principles  of 
Jurisprudence."  '  —  J.  B.  T."] 

This  case  came  up  on  error  to  the  District  Court  of  the 
United  States  for  Iowa,  where  a  demurrer  to  the  defend- 
ant's answer  was  overruled  and  judgment  given  for  the 


142  LEGAL  ESSAYS 

defendant.  The  suit  was  brought  to  recover  the  amount 
of  coupons  on  certain  bonds  of  the  defendant  city,  issued 
under  color  of  authority  from  an  act  of  the  Legislature  of 
Iowa.  It  was  brought  in  the  United  States  court  by  the 
plaintiffs,  who  were  not  citizens  of  Iowa,  under  those  pro- 
visions of  the  Constitution  and  laws  of  the  United  States, 
by  which  persons  who  are  not  citizens  of  a  State  where  they 
wish  to  sue  one  who  is  such  a  citizen,  are  permitted  to  avoid 
the  danger  of  a  possible  bias  and  prejudice  in  the  State 
courts  in  favor  of  their  own  people,  by  proceeding  in  a 
national  tribunal  sitting  within  that  State.  The  defence 
was  that  the  bonds  were  unlawfully  issued,  in  that  the 
Constitution  of  Iowa  forbade  the  Legislature  to  create  debts 
exceeding  one  hundred  thousand  dollars ;  and  it  was  alleged 
that  at  the  time  of  the  statute  authorizing  these  bonds,  the 
indebtedness  of  the  State  and  of  the  municipalities  of  the 
State  exceeded  this  amount.  There  were  other  grounds  of 
this  alleged  unconstitutionality,  but  it  is  not  needful  to 
mention  them. 

The  bonds  were  issued  in  1857,  in  aid  of  a  railroad  com- 
pany, and  were  payable  to  bearer,  in  New  York,  with  a 
series  of  half-yearly  coupons.  The  city  was  authorized 
to  lay  special  taxes  to  pay  the  interest.  For  several  years 
before  they  were  issued,  the  Supreme  Court  of  Iowa,  in 
deciding  other  litigated  cases  like  the  present  one,  had  up- 
held the  constitutionality  of  similar  issues  of  bonds.  There 
were  other  statutes  and  other  decisions  of  a  similar  char- 
acter during  several  years  after  the  bonds  now  in  question 
were  issued.  At  the  time  of  bringing  the  present  action, 
and  long  after  the  issue  and  negotiation  of  these  bonds, 
namely,  in  1862,  the  Supreme  Court  of  Iowa  had  reversed 
its  previous  course  of  decision,  and  had  held  that  the  bonds 
were  invalid,  as  being  forbidden  by  the  State  constitution. 
In  1863  the  present  case  came  up  to  the  Supreme  Court  of 
the  United  States,  on  error,  and  the  judgment  of  the  Dis- 
trict Court  overruling  the  plaintiff's  demurrer  and  holding 
for  the  defendant  was  reversed,  Mr.  Justice  Miller  alone 


FEDERAL  AND   STATE   DECISIONS  143 

dissenting.  The  main  struggle  in  the  case,  as  it  was 
argued  in  the  Supreme  Court,  was  over  the  question  of 
following  the  State  court  in  its  decisions  interpreting  its 
own  constitution.  It  was  insisted,  on  behalf  of  the  defend- 
ant, that  the  United  States  courts,  in  exercising  their 
jurisdiction  founded  on  the  citizenship  of  parties,  only 
administer  the  law  of  the  State;  and  that  in  determining 
Avhat  the  law  of  the  State  is,  the  United  States  courts  are 
bound  to  follow  the  settled  construction  of  the  State 
courts,  whether  on  a  point  of  statute  law  or  of  common  law. 
On  the  other  side,  it  was  urged  that  the  law  upon  this 
matter  now  in  issue  was  not  settled  in  Iowa,  or  if  it  were 
settled,  that  the  settled  law  was  that  of  the  earlier  decisions ; 
that  so  recent  a  decision  as  this  of  1862,  reversing  the 
others,  could  not  be  held  to  have  settled  the  law  the  other 
way;  and  the  court  was  invited  to  examine  the  question 
anew  and  settle  it  for  itself.  But  the  court,  speaking 
through  Mr,  Justice  Swayne,  while  plainly  indicating  its 
approval  of  the  older  decisions,  and  its  disapproval  of  the 
last  one,  and  while  stating  its  own  view  that  the  new 
opinion  had  not  settled  the  law,  nevertheless  declined  to 
go  into  the  question  of  whether  the  earlier  decisions  were 
right,  or  to  examine  the  question  at  all,  or  to  follow  any  rule 
which  required  them,  in  such  a  case  as  the  present,  to 
adhere  to  the  decision  of  the  State  courts;  and  they  pro- 
ceeded to  lay  down  the  important  principle  that  where  the 
law  of  the  State  was  settled,  at  the  time  the  bonds  were 
issued,  in  favor  of  the  legal  validity  of  the  bonds,  they 
could  not  afterwards  be  held  invalid,  even  by  a  court  which 
should  be  of  opinion  that  the  former  construction  of  the 
constitution  was  wrong.  This  proposition,  first  established 
in  the  present  case,  has  since,  against  much  opposition  and 
criticism,  been  steadily  followed  in  the  Supreme  Court. 
Indeed,  within  a  few  years  after  the  decision  of  the  present 
case,  which  was  at  the  December  term,  1863,  the  Supreme 
Court  declared  that  the  question  was  no  longer  open  to 
controversv  before  them.  .  .  . 


144  LEGAL  ESSAYS 

Is  this  proposition,  in  the  case  of  Gelpeke  v.  Dubuque,  a 
sound  one  and  rightly  applied?  In  order  to  determine 
that  question  we  must  first  take  several  matters  clearly 
into  account. 

There  is  a  well-known  difference  in  the  way  in  which 
cases  may  be  brought  into  the  United  States  courts,  (a) 
They  may  come  there  because  the  case  involves  a  question 
under  the  Constitution,  treaties,  or  laws  of  the  United 
States.  In  such  cases  the  United  States  Supreme  Court 
is  the  ultimate  tribunal  of  appeal,  whether  the  case  has 
come  up  from  a  State  court  or  from  an  inferior  court  of 
the  United  States.  It  has  no  duty  of  following  the  laws 
of  the  States,  for  it  is  now  administering  the  law  of  its 
own  government.  If,  in  such  a  case,  there  be  a  question 
of  impairing  the  obligation  of  a  contract,  and  the  State 
court  has  held  that  there  is  no  contract  to  be  impaired,  the 
Supreme  Court  may  re-examine  that  question  with  entire 
freedom,  although  it  involve  the  construction  of  the  consti- 
tution or  statutes  of  the  State ;  it  is  not  in  any  way  bound 
to  follow  the  decision  of  the  State  court.  Such  an  un- 
fettered power  is  necessary  in  order  to  the  full  exercise  of 
the  jurisdiction  of  the  Supreme  Court.  In  the  case  of  the 
Ohio  Company  v.  Debolt,  16  How.,  at  p.  432,  on  error  to 
the  Supreme  Court  of  Ohio,  Chief  Justice  Taney,  speaking, 
probably,  for  a  majority  of  the  court,  remarked :  "  The 
duty  imposed  upon  this  court  to  enforce  contracts  .  .  . 
would  be  vain  and  nugatory  if  we  were  bound  to  follow 
those  changes  in  judicial  decisions  which  the  lapse  of  time 
and  the  change  in  judicial  officers  will  often  produce.  The 
writ  of  error  to  a  State  court  would  be  no  protection  to  a 
contract  if  we  were  bound  to  follow  the  judgment  which  the 
State  court  had  given,  and  which  the  writ  of  error  brings 
up  for  revision  here."  (6)  But  there  is  another  ground 
for  coming  into  the  courts  of  the  United  States.  A  case 
may  come  there,  as  this  one  did,  not  because  of  any  question 
arising  under  the  Constitution  or  laws  of  the  United  States, 
but  simply  because  the  plaintiff  and  defendant  are  citizens 


FEDERAL  AND   STATE   DECISIONS  145 

of  different  States  or  countries.  In  such  a  case  the  court 
is  administering  the  law  of  the  State.  In  this  sort  of  case 
the  general  rule  is,  that,  since  the  court  is  applying  the 
law  of  the  State,  it  will  follow,  in  determining  what  that 
law  is  and  in  construing  it,  the  decisions  of  its  highest  court. 
If  the  question  has  not  ever  come  up  in  the  State  court, 
or  if  there  be  no  settled  rule  there,  the  United  States 
court  must,  of  course,  decide  for  itself.  But,  even  after 
such  an  independent  decision  has  been  made,  if  the  highest 
court  of  the  State  should  arrive  at  a  different  conclusion, 
the  United  States  court  will,  in  general,  change  from  its 
own  previous  decision,  and  will  adopt  that  of  the  State 
courts.^  Nothing  could  more  plainly  mark  the  secondary 
character  of  the  jurisdiction  of  United  States  courts  in  this 
region  of  it. 

But  there  are  various  qualifications  of  these  doctrines. 
The  most  conspicuous  of  them  is  the  principle  of  Swift  v. 
Tyson,  16  Pet.  1  (1842),  in  which  the  novel  and  much- 
contested  doctrine  was  laid  down,  that  upon  questions  of 
what  is  called  general  commercial  law,  the  courts  of  the 
United  States  did  not  undertake  to  follow  the  State  courts.^ 
This  declaration  was  not  required  for  the  decision  of  that 
case,  but  it  has  been  followed,  and  is  an  established  rule  of 
the  United  States  jurisprudence.  Its  soundness  in  point 
of  principle  is,  possibly,  open  to  question ;  at  any  rate,  it  is 
undergoing  much  criticism  at  the  present  day.  The  same 
principle  is  laid  down  as  regards  the  construction  of  ordi- 
nary language  (Lane  v.  Vick,  3  How.  464,  476)  ;  but  in 
that  case  there  was  a  strong  dissenting  opinion  of  McKinley, 
J.,  concurred  in  by  Taney,  C.  J.  Again,  when  the  United 
States  court  has  already  decided  a  question,  and  a  later 

1  Green  v.  Neal'a  Lessee,  6  Pet.  291  ;  Carroll  County  Supervisors  v. 
United  States,  18  Wall.  71. 

==  [Not  at  all  a  doctrine  that  they  will  not  conform  to  the  statutes 
of  the  State.  Watson  v.  Tarpley,  18  How.  517,  seems  to  be  clearly  bad. 
Observe  how  considerable  a  modification  it  is,  of  the  doctrine  often  at- 
tributed to  the  Federal  courts,  that  they  recognize  the  right  of  the 
State  to  end  all  controversy  by  legislation.  See  Lake  Shore  By.  Co.  v. 
Prentice,  147  U.  S.  101,  106.] 

10 


146  LEGAL  ESSAYS 

decision  of  the  State  differs  from  this,  the  United  States 
court  may  at  least  wait  awhile  before  changing  its  own 
decision.^  And,  finally,  it  was  long  ago  intimated  that  a 
United  States  court  would  not  follow  the  State  decisions 
where  these  were  regarded  as  biased,  and  unjust  to  citizens 
of  other  States.  It  will  easily  appear  that  in  some  sense  and 
to  some  extent  there  should  be  a  recognition  of  such  a  prin- 
ciple as  the  one  just  named;  all  State  courts  must  keep 
within  the  line  of  reason  in  order  to  make  it  just  that  the 
United  States  courts  should  follow  them.  Yet,  notwith- 
standing all  these  qualifications,  it  is  still  true,  and  is  rec- 
ognized as  the  sound  general  principle  in  the  class  of  cases 
now  under  discussion,  that  the  courts  of  the  United  States 
will  follow  the  decisions  of  the  State  courts  in  ascertaining 
and  construing  their  own  law.  The  declarations  to  this 
effect  are  many  and  emphatic.^ 

It  is  with  one  of  the  qualifications  of  this  rule  that  we 
are  concerned  in  this  case,  namely,  the  one  arising  out  of 
the  danger  to  citizens  of  other  States  from  local  prejudice. 
I  have  said  that  some  power  of  varying  from  the  decisions 
of  the  States  must  necessarily  exist,  as  regards  this  sort  of 
case;  that,  at  least,  the  local  courts  must  keep  within  the 
limits  of  reason.  Shall  the  range  of  the  United  States 
court,  in  differing  from  the  local  tribunals,  go  farther  than 
that,  and  how  much  farther? 

In  Eowan  v.  Eunnels,  5  How.  139  (a  case  coming  up 
from  the  Circuit  Court  of  the  United  States  for  Missis- 
sippi), Chief  Justice  Taney  remarks:  "We  ought  not  to 
give  to  them  (the  decisions  of  State  courts)  a  retroactive 
effect,  and  allow  them  to  render  invalid  contracts  entered 
into  with  citizens  of  other  States,  which  in  the  judgment 
of  this  court  were  lawfully  made.  For  if  such  a  rule  were 
adopted  ...  it  is  evident  that  the  provision  in  the  Con- 
stitution of  the  United  States  which  secures  to  the  citizens 

'  Shelby  v.  Guy,  11  Wheat.  ."^Gl. 

»  Elmendorf  v.  Taylor,  10  Wheat.  152,  159-60:  Webster  v.  Cooper, 
14  How.  488,  502-5  :  Nesmlth  t'.  Sheldon,  7  How.  812  ;  Williamson  v. 
Berry,  8  How.  495,  558 ;    Leffingwell  v.  Warren,  2  Black,  599. 


FEDERAL  AND   STATE   DECISIONS  147 

of  another  State  the  right  to  sue  in  the  courts  of  the  United 
States,  might  become  utterly  useless  and  nugatory."  This 
is  the  assertion  of  a  right,  which  is,  indeed,  an  obvious  one, 
to  depart  from  the  State  court's  construction  of  the  local 
law,  in  so  far  as  is  necessary  to  prevent  the  annulling  of 
that  protection  for  citizens  of  other  States  which  the  Con- 
stitution was  intended  to  secure.  For,  although  the  courts 
of  the  United  States  in  this  sort  of  case  have  to  apply  the 
State  law,  it  is  to  be  remarked  that  they  are  courts  of  the 
United  States,  and  not  courts  of  the  State.  Why  is  it  that 
a  United  States  court  is  given  this  duty  of  administering 
the  law  of  another  jurisdiction?  Why  did  the  States  allow 
it?  Why  was  it  important  that  the  United  States  should 
have  it?  It  was  because,  in  controversies  between  its  own 
citizens  and  those  of  other  States  or  countries,  it  might  be 
expected  that  the  courts  of  any  given  State  would  not  be 
free  from  bias.  Accordingly  we  read,  in  No.  80  of  the 
"  Federalist,"  the  very  striking  statement  of  Hamilton  as 
regards  the  danger  that  might  come  from  unjust  decisions 
of  the  several  States  as  against  foreigners  and  citizens  of 
other  States,  and  the  importance  of  that  jurisdiction  of  the 
Federal  courts  which  we  are  now  considering :  — 

"  The  responsibility  for  an  injury,"  he  says,  "  ought  ever  to  be 
accompanied  with  the  faculty  of  preventing  it.  As  the  denial 
or  perversion  of  justice  by  the  sentences  of  courts,  as  well  as  in 
any  other  manner,  is  with  reason  classed  among  the  just  causes 
of  war,  it  will  follow  that  the  Federal  judiciary  ought  to  have 
cognizance  of  all  causes  in  which  the  citizens  of  other  countries 
are  concerned.  .  .  .  The  power  of  determining  causes  between 
two  States,  between  one  State  and  the  citizens  of  another,  and 
between  the  citizens  of  different  States,  is  perhaps  not  less  essen- 
tial to  the  peace  of  the  Union  than  that  which  has  been  just 
examined.  History  gives  us  a  horrid  picture  of  the  dissensions 
and  private  wars  which  distracted  and  desolated  Germany  prior 
to  the  institution  of  the  Imperial  Chamber  by  Maximilian,  towards 
the  close  of  the  fifteenth  century;  and  informs  us,  at  the  same 
time,  of  the  vast  influence  of  that  institution  in  appeasing  the 
disorders  and  establishing  the   tranquillity   of  the  empire.     This 


148  LEGAL  ESSAYS 

was  a  court  invested  with  authority  to  decide  finally  all  diflFcrences 
among  the  members  of  the  Germanic  body.  ...  It  may  be  esteemed 
the  basis  of  the  Union  that  '  the  citizens  of  each  State  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens  of  the 
several  States.'  And  if  it  be  a  just  principle  that  every  govern- 
ment ought  to  possess  the  means  of  executing  its  own  provisions 
by  its  own  authority,  it  will  follow  that  in  order  to  the  inviolable 
maintenance  of  that  equality  of  privileges  and  immunities  to  which 
the  citizens  of  the  Union  will  be  entitled,  the  national  judiciary 
ought  to  preside  in  all  cases  in  which  one  State  or  its  citizens 
are  opposed  to  another  State  or  its  citizens.  To  secure  the  full 
effect  of  so  fundamental  a  provision  against  all  evasion  and  sub- 
terfuge, it  is  necessary  that  its  construction  should  be  committed 
to  that  tribunal  which,  having  no  local  attachments,  will  be  likely 
to  be  impartial  between  the  diflFerent  States  and  their  citizens,  and 
which,  owing  its  official  existence  to  the  Union,  will  never  be 
likely  to  feel  any  bias  inauspicious  to  the  principles  on  which 
it  is  founded." 

To  come  back  now  to  the  question  how  far  the  United 
States  courts  may  go  in  refusing  to  follow  the  decisions  of 
the  State  courts.  Shall  they  be  limited  merely  to  the  pre- 
vention of  results  which  would  be  absurd  and  irrational,  or 
may  they  properly  go  farther?  As  I  have  already  said,  in 
this  class  of  cases,  as  in  all  others,  whenever  a  question 
develops  which  involves  the  law  of  the  United  States,  the 
United  States  court  must,  as  touching  that,  act  independ- 
ently, although  its  ground  of  jurisdiction  over  the  case  was 
originally  merely  the  citizenship  of  the  parties.  But  sup- 
pose no  question  of  that  kind  to  arise.  That  is  the  fact  in 
the  present  case ;  this  case,  if  originally  brought  in  a  State 
court,  could  not  have  been  carried  up  to  the  Supreme  Court 
of  the  United  States,  because  it  does  not  involve  any  ques- 
tion of  a  "  law "  impairing  the  obligation  of  contracts.^ 
The  lower  United  States  courts,  as  we  have  seen,  deal  with 
such  cases,  because  they  have  concurrent  jurisdiction  with 

»  Railroad  Company  v.  McClure,  10  Wall.  511.  [Central  Land  Co.  v. 
Laidley,  150  U.  S.  103 ;  Bacon  v.  Texas,  163  U.  S.  207  ;  McCullough  v. 
Virginia,  172  U.  S.  102 ;  Turner  v.  Wilkes  County  Commissioners,  173 
U.  S.  461.] 


FEDERAL  AND  STATE   DECISIONS  149 

the  State  courts  on  the  ground  of  the  citizenship  of  the 
parties;  and,  having  regard  to  the  reason  that  they  are 
given  this  concurrent  jurisdiction,  namely,  the  danger  of 
injury  to  citizens  of  other  States  or  countries,  hy  reason 
of  the  bias  of  the  State  courts,  it  may  be  laid  down  that 
wherever  State  courts  are  likely  to  be  under  a  local  bias, 
adverse  to  the  citizens  of  other  States  or  countries,  the 
United  States  courts  must  hold  themselves  at  liberty  to 
depart  from  the  decisions  of  the  local  courts  in  construing 
and  applying  the  local  law  and  the  local  constitution,  to 
look  into  the  question  for  themselves,  and  to  adopt  their 
own  rules  of  administration.  This  appears  to  be  only  a 
just  assertion  of  the  power  intended  to  be  given  to  these 
courts  by  the  Constitution  of  the  United  States,  in  dealing 
with  the  class  of  cases  now  under  consideration.  To  this 
effect  is  the  reasoning  of  Mr.  Justice  Bradley,  speaking 
for  the  court,  in  Burgess  v.  Seligman,  107  U.  S.  20 
(1882).! 

Assuming  this  to  be  so,  we  have  thus  far  only  determined 
that  the  United  States  courts  will  look  into  such  questions 
for  themselves.  The  statement  of  Chief  Justice  Taney  in 
the  case  of  Eowan  v.  Runnels,  above  quoted,  did  not  go 
beyond  this.  But  in  the  case  of  Gelpcke  v.  Dubuque,  the 
Supreme  Court  flatly  refused  to  look  into  the  merits  of  the 
question  at  all;  and,  in  declining  to  follow  the  later  deci- 
sion of  the  Iowa  court,  a  rule  was  laid  down  which  estab- 
lished the  validity  of  the  bonds,  irrespective  of  any  opinion 
whether,  as  an  original  question,  they  were  lawfully  and 
constitutionally  issued  or  not.  The  Supreme  Court,  quot- 
ing substantially  an  obiter  remark  of  Tane}^  C.  J.,  in  Ohio 
Co.  V.  Debolt,  16  How.,  at  p.  432,  put  forward  this 
proposition :  — 

"  Tlie  sound  and  true  rule  is  that  if  the  contract  when  made  was 
valid  by  the  laws  of  the  State  as  then  expounded  by  all  departments 
of  the  government,  and  administered  in  its  courts  of  justice,  its 

'   [See  also  Stanly  County  v.  Coler,  190  U.  S.  437.] 


150  LEGAL   ESSAYS 

validity  cannot  be  impaired  by  any  subsequent  action  of  legislation 
or  decision  of  its  courts  altering  the  construction  of  the  law."  i 

Has  the  United  States  court  any  right  to  say  this  —  to 
announce  that  it  will  not  look  into  the  question,  whether 
the  bonds  were  originally  authorized  by  the  State  constitu- 
tion or  not  ?  Any  right  to  say  that  although,  in  this  court's 
judgment,  it  may  be  true,  as  an  original  question,  that  they 
were  issued  in  violation  of  the  State  constitution,  the  court 
will  still  hold  them  to  be  valid  ? 

With  a-  certain  qualification,  I  think  that  it  has.  The 
laying  down  of  some  rule  of  administration  is  legitimate, 
for  the  court,  as  we  see,  has  the  right  to  look  into  the  ques- 
tion for  itself;  and  all  courts,  in  regulating  the  exercise 
of  their  functions,  lay  down,  from  time  to  time,  rules  of 
presumption  and  rules  of  administration.  It  is  a  usual, 
legitimate,  necessary  practice.  It  is,  to  be  sure,  judicial 
legislation;  but  it  is  impossible  to  exercise  the  judicial 
function  without  such  incidental  legislation.  If  this  rule 
in  Gelpcke  v.  Dubuque  be  understood,  as  it  was  probably 
meant,  as  being  subject  to  a  certain  qualification,  it  appears 
to  me  good.  It  will  not  do,  of  course,  to  allow  the  United 
States  courts,  through  the  medium  of  any  principle  of  pre- 
sumption or  judicial  administration,  or  anything  else,  to 
sanction  a  violation  of  the  State  constitution  or  the  State 
laws.  There  might  be  a  case  wherein  the  violation  of  the 
constitution  was  gross  and  palpable,  and  such  that  those 
who  took  part  in  it,  whether  in  making  contracts  or  doing 
anything  else,  must  be  held  to  have  known  what  they  were 
doing;  and  in  such  a  case  no  court  would  be  justified  in 
laying  down  a  rule  that  would  protect  these  parties.  But 
courts  often  have  to  recognize,  especially  in  the  region  of 
constitutional  law,  that  there  is  more  than  one  reasonable 
and  allowable  interpretation  of  a  thing.  It  is  familiar  that 
they  will  not  set  aside  the  interpretation  put  upon  the  con- 
stitution by  a  co-ordinate  legislature,  in  enacting  a  law, 

>  1  Wall.  206. 


FEDERAL  AND  STATE  DECISIONS  151 

unless  the  mistake  be  very  plain  indeed,  —  so  plain  (in  the 
ordinary  phrase  used  in  such  cases)  as  to  be  beyond  reason- 
able doubt.  If  the  rule  be  understood  in  this  sense  only, 
that  any  contract  which  was  held  good  at  the  time  of  making 
it  by  the  highest  court  of  the  State,  and  which  came  within 
a  permissible  interpretation  of  the  State  constitution  and 
law,  will  be  sustained  in  the  United  States  courts,  I  think 
that  it  is  a  sound  one,  and  should  be  upheld.  It  is  a  rule 
which  the  State  court  should  accept;  and  if  the  adoption 
of  it  by  the  United  States  court  lead  to  resistance  on  the 
part  of  the  State  authorities,  that  is  a  result  which  must 
be  submitted  to  and  dealt  with  as  may  be  possible.  Such 
temporary  consequences  were  probably  anticipated  when 
the  constitution  was  formed.  But  it  may  be  confidently 
expected  that  so  just  a  rule  will  ultimately  commend  itself 
to  all  courts.^  It  will  be  observed  that  the  rule  is  one 
regulating  the  administration  of  a  particular  jurisdiction  of 
the  United  States  courts.  It  does  not  necessarily  follow 
that  this  same  rule  should  be  applied  in  any  other  class 
of  cases. 

Since  the  rule  must  be  attended  with  the  qualification 
above  named,  the  question  next  arises  whether  the  doctrine 
which  was  laid  down  in  the  earlier  decisions  in  Iowa  gives 
a  construction  to  the  constitution  of  that  State  which  is 
a  rational,  a  permissible  one.  I  have  no  doubt  that  it  does. 
Indeed,  it  appears  to  me  that  the  Supreme  Court  of  the 
United  States  is  right  in  saying  that  this  view  was  the  just 
and  sound  interpretation  of  that  constitution.  And  it  may 
now  be  added  also  that  the  Supreme  Court  of  Iowa,  within 
seven  or  eight  years  after  the  decision  of  the  Supreme  Court 
of  the  United  States  in  the  present  case,  came  back  again 
to  the  doctrine  of  the  earlier  cases,  and  that  this  is  now  the 

1  [It  Is  adopted  in  Haskett  v.  Maxey,  134  Ind.  182  (1892).  and  in 
Farrier  v.  N.  Eng.  Mortg.  See.  Co.,  88  Ala.  275,  and  92  ib.  176  ;  s.  c. 
Wambaugli's  Study  of  Cases,  ,308  ;  affirmed  in  .Tones  v.  Iron  Co..  95  Ala. 
551,  563  (1891)  ;  Vt.  &  Can.  R.  R.  Co.  v.  Vt.  Cent.  R.  R.  Co.,  63  Vt.  1 
(1890)  ;  Harris  v.  .Tex,  55  N.  Y.  421  (1874).  See  also  St.  Louis  Ry. 
Co.  V.  Fowler,  142  Mo.  670.] 


152  LEGAL   ESSAYS 

fixed  law  of  the  State.^     It  is  enough,  however,  to  say  that 
the  view  was  one  which  might  reasonably  he  held. 

It  will  be  observed  that  the  decision  of  this  case  does  not 
at  all  turn  upon  the  clause  of  the  Constitution  of  the  United 
States  relating  to  impairing  the  obligation  of  contracts; 
and  it  should  be  added  that  it  does  not  in  any  degree  turn 
upon  a  theory  that  the  United  States  courts  have  any  special 
rights  conferred  upon  them  by  the  fact  that  the  case  relates 
to  a  contract.  These  courts  are  not  the  special  protectors 
of  contracts,  excepting  under  the  clause  in  the  Constitution 
of  the  United  States  forbidding  State  legislation  which 
impairs  their  obligation.  The  true  ground  is  that  the  courts 
of  the  United  States  are  charged  with  a  special  duty,  in 
litigation  between  citizens  of  different  States;  that  the 
nature  of  this  special  duty  requires  those  courts  sometimes 
to  exercise  a  perfectly  independent  judgment  in  construing 
and  applying  the  laws  and  constitutions  of  the  States;  and 
that  the  rule  of  administration  applicable  to  the  exercise 
of  this  function,  laid  down  by  the  Supreme  Court  of  the 
United  States  in  Gelpcke  v.  Dubuque,  is  a  just  and  whole- 
some one.2 

^  Stewart  v.  Supervisors,  30  Iowa.  103. 

^  ["As  regards  the  very  interesting  topic  involved  in  the  case  of 
Gelpcke  v.  Dubuque,  see  Holland's  .Turisp.  (6th  ed.)  61 :  Bigelow's  note 
in  1  Story's  Eq.  .Tur.  (l.'Uh  ed.)  .")2:! :  Wiinil)iHigh's  Study  of  Cases,  78 
and  315,  n.  ;  and  the  various  articles  called  out  by  the  case,  such  as 
those  by  Hon.  Henry  Reed,  in  9  Am.  Law  Kev.  381  ;  by  Hon.  .1.  B. 
Heiskell,  in  22  Am.  Law  Rev.  190  :  by  Mr.  Conrad  Reno,  In  23  Am.  Law 
Rev.  190  ;  and  by  Mr.  Wm.  H.  Rand,  .Jr.,  in  8  Harv.  Law  Rev.  328." 
2  Thayer's  Const.  Cas.  1551,  n. 

See  also  the  important  case  of  Muhlker  v.  Harlem  Railroad,  107 
U.  S.  544,  in  which  the  majority  of  the  court  held  that  one  who  had 
bought  property  in  New  York  on  the  faith  of  the  earlier  elevated  rail- 
road cases  acquired  rights  which  could  not  be  affected  by  a  change  of 
view  in  the  State  Court,  and  Mr.  .Justice  Holmes,  dissenting,  said : 
"  That  seems  to  me  a  great,  unwarranted,  and  undesirable  extension  of 
a  doctrine  which  it  took  this  court  a  good  while  to  explain."] 


OUR   NEW  POSSESSIONS 

[This  paper  was  written  for  a  small  dining  club,  at  each  meeting 
of  which  it  was  the  custom  for  some  member  to  read  a  paper  on 
a  topic  connected  with  his  own  profession  or  calling.  Afterwards^ 
in  February,  1899,  it  was  published  in  the  Harvard  Law  Review 
(12  Harv.  Law  Rev.  464),  accompanied  by  the  following  note: 
"  This  paper  was  prepared  for  a  non-professional  audience,  to 
which  it  was  read  on  January  9  last.  The  writer  has  hesitated 
about  submitting  to  the  learned  readers  of  this  Review  a  paper 
somewhat  too  slight,  perhaps,  for  their  consideration,  and  in  dan- 
ger, moreover,  of  becoming  antiquated  before  it  can  be  published. 
In  assenting  to  this  use  of  it  he  is  influenced  by  the  important 
nature  of  some  of  the  suggestions  here  made,  —  as  they  appear  to 
him,  —  and  by  the  fact  that  he  cannot  undertake  to  remodel  it." 

In  connection  with  this  article  the  fact  is  of  interest  that  in 
February,  1900,  Professor  Thayer  was  asked  by  President  McKinley 
to  serve  on  the  Philippine  Commission.  Professor  Thayer  would 
have  accepted  this  appointment  but  for  his  age.  Although  in  good 
health,  he  did  not  think  it  wise  to  face  so  great  a  change  both  in 
climate  and  in  the  conditions  of  his  work.] 

Ox  the  part  of  many  who  are  dealing  Math  the  important 
questions  now  agitating  the  country  there  is  to  be  observed, 
in  the  newspapers  and  elsewhere,  a  great  deal  of  two  things, 
which  may  be  called,  in  homely  phrase,  crying  over  spilled 
milk,  and  jumping  before  you  reach  the  stile;  a  great  deal 
also  of  bad  constitutional  law,  bad  political  theor}^,  and  ill- 
understood  history. 

When  we  elect  persons  to  office,  they  have  the  power  of 
committing  us  to  courses  of  conduct  and  to  policies  which 
may  be  very  unacceptable  to  us.  Perhaps  war  may  be  made, 
when  we  personally  abhor  it;  perhaps  peace  may  be  made 
on  terms  very  repugnant  to  us;  perhaps  the  whole  tra- 
ditional policy  of  the  country  may  be  reversed,  contrary 
to  our  wishes;    schemes  may  be  forwarded  which  we  have 


154  LEGAL  ESSAYS 

always  opposed  as  fraught  with  the  utmost  danger.  Whether 
we  like  it  or  not,  the  accomplishment  of  such  results  is 
often  fully  in  the  power  of  our  public  servants.  It  is  we 
ourselves  that  have  given  them  the  power;  they  hold  our 
commission,  and  we  are  bound  by  their  acts.  When  such 
results  have  actually  been  accomplished,  what  are  we  to  do  ? 
We  may  abandon  the  country  and  go  elsewhere.  We  may 
sit  down  qnd  cry  over  the  calamity.  We  may  quarrel  with 
the  facts,  and  refuse  to  recognize  them.  I  think  it  is  better 
to  face  them,  liowever  unwelcome,  and  seek  to  shape  the 
future  as  best  we  may. 

Let  me  make  a  preliminary  application  of  these  remarks, 
so  as  to  leave  entirely  clear  my  own  point  of  view  on  one 
subject,  and  to  get  it  behind  us,  in  this  discussion.  Doubt- 
less this  Spanish  war  has  brought  about  a  great  benefit 
to  mankind,  by  ending  the  misrule  of  Spain  in  her  American 
colonies,  and  almost  ending  it  in  her  Asiatic  ones.  That 
these  regions  will  themselves  be  much  better  off  under  any 
probable  government  that  now  awaits  them,  we  must  all 
believe.  Doubtless  also  noble  exhibitions  of  courage  and 
skill  have  illustrated  the  war.  Always,  thank  God,  the 
human  creature  of  our  blood,  in  such  emergencies,  can  be 
counted  on  for  these  things.  Doubtless  also  it  was  the 
distinction  of  our  own  nation  to  bring  about  these  great 
results.  But  let  us  not  too  quickly  exult  in  that.  It  does 
not  at  all  follow  that  we  have  anything  to  be  proud  of.  It 
may  still  be  true  that  our  real  place  in  this  business  is 
a  discreditable  one.    Personally  I  think  it  is,    • 

"  God  moves  in  a  mysterious  way 
His  wonders  to  perform." 

He  makes  the  wrath  of  man  to  praise  him.  Not  seldom 
great  and  beneficent  ends  come  about  through  the  folly,  the 
moral  weakness,  the  thoughtlessness,  the  wickedness  of 
nations,  —  through  their  lack  of  noble  qualities,  as  well 
as  through  the  conscious  exercise  of  virtue  and  self-restraint. 
I  think  that  history  will  find  this  to  be  true  in  the  case  of 


OUR  NEW   POSSESSIONS  155 

the  late  war;  for,  to  say  no  worse  of  it,  it  was  a  war,  with 
all  its  awful  concomitants,  which  we,  a  strong  nation,  forced 
upon  a  feeble  one  while  it  was  on  its  knees,  ready  to  surren- 
der everything  of  substance,  if  only  it  might  save  its  pride. 

But  the  events  of  last  year,  of  this  hell  of  war,  "  as  in  the 
best  it  is,"  have  slipped  by  into  the  vast  cavern  of  the  past, 
and  it  is  useless  to  lament  them.  There  they  stand,  fixed 
forever  and  unchangeable. 

"  Not  the  gods  can  shake  the  past. 
Flies-to  the  adamantine  door, 
Bolted  down  for  evermore. 
None  can  re-enter  there,  .  .  . 
To  bind  or  unbind,  add  what  lacked,  .  .  . 
Alter  or  mend  eternal  fact." 

It  is  not  the  war,  then,  that  is  to  be  the  subject  for  our 
reflections  to-night,  whatever  we  may  think  of  it,  but  the 
portentous  consequences  of  the  war ;  these  great  and  unwel- 
come questions  about  the  treaty  and  the  island  dependencies. 

In  speaking  of  these  questions,  we  must  again  recognize 
accomplished  facts.  No  longer  can  we  claim  our  old  good 
fortune  of  being  able  to  work  out  a  great  destiny  by  our- 
selves, here  in  this  western  world.  In  my  judgment  it  was 
a  bad  mistake  to  throw  away  our  wonderful  inherited 
felicity,  in  being  removed  from  endless  complications  with 
the  politics  of  other  continents.  Had  we  appreciated  our 
great  opportunity  and  been  worthy  of  it,  we  might  have 
worked  out  here  that  separate,  peculiar,  high  destiny  which 
our  ancestors  seemed  to  foresee  for  us,  and  which  with  all 
its  grave  drawbacks  and  moral  dangers,  might  have  done 
more  for  mankind  than  anything  we  may  hope  to  accomplish 
now  by  taking  a  leading  part  in  the  politics  of  the  world. 
"  Let  not  England,"  said  John  Milton  to  the  Parliament 
in  1645,  "  forget  her  precedence  of  teaching  nations  how 
to  live."  So  to  the  United  States  of  America,  before  this 
Spanish  war,  —  possessed  as  she  was  of  this  fortunate 
isolation,  of  free  yet  guarded  institutions,  of  vast,  unpeopled 


156  LEGAL   ESSAYS 

areas,  of  an  opportunity  to  illustrate  how  nations  may  be 
governed  without  wars  and  without  waste,  and  how  the  great 
mass  of  men's  earnings  may  be  applied,  not  to  the  ma- 
chinery of  government,  or  the  rewarding  of  office-holders, 
or  the  wasteful  activities  and  enginery  of  war,  but  to  the 
comforts  and  charities  of  life  and  to  all  the  nobler  ends 
of  human  existence,  —  so,  I  say,  to  our  country  as  she 
was  before  the  war,  that  same  solemn  warning  of  Milton, 
"  God-gifted  organ-voice  of  England,"  might  well  have 
come :  "  Let  not  America  forget  her  precedence  of  teaching 
nations  how  to  live." 

But  now  we  are  no  longer  where  we  were.  The  war  has 
broken  down  the  old  barriers.  First  it  brought  us  Hawaii, 
a  colony  two  thousand  miles  away,  in  the  Pacific  Ocean. 
In  point  of  distance  this  was  much  as  if  we  should  sail 
out  over  the  Atlantic  and  annex  the  Azores.  And  now 
the  end  of  the  war  is  bringing  us  Puerto  Kico,  Cuba,  and 
the  Philippine  Islands.  All  these  strange  tropical  countries 
are  likely  to  be  on  our  hands.  Hawaii  is  already  actually 
a  part  of  our  territory.  From  the  other  islands  we  have 
driven  out  their  sovereign,  and  we  have  loaded  ourselves 
with  great  responsibilities  and  hazards  in  supplying  them 
with  government,  maintaining  order,  and  determining  what 
shall  be  their  fate  in  the  future.  What  are  we  to  do  ?  That 
the  situation  is  full  of  peril  for  us  there  is  no  doubt;  that 
it  is  certain  to  involve  us  in  great  outlays  and  perplexities, 
and  in  constant  hazard  of  war  is  clear  enough. 

I  have  spoken  of  accomplished  facts.  Let  us  take  account 
of  these  a  little  more  accurately.  First,  technically  speak- 
ing, the  war  is  not  yet  over.  But  as  practical  men  we  may 
as  well  be  assured  that  it  will  not  be  renewed.  Let  us  accept 
that,  with  all  its  consequences,  as  an  accomplished  fact,  and 
let  us  no  longer  cry  over  the  war.  Second,  the  negotiation 
of  the  treaty  of  peace  is  another  accomplished  fact.  We 
might  have  preferred  something  very  different.  But  the 
President  whom  we  have  charged  with  responsibility  has 
seen  fit  to  put  it  in  the  shape  which  has  been  unofficially 


OUR  NEW  POSSESSIONS  157 

disclosed  in  our  newspapers.  The  negotiation  of  the  treaty ; 
I  do  not  say  that  the  treaty  itself  is  an  accomplished  fact. 
That  is  now  pending  in  the  Senate.  Perhaps,  it  may  be 
amended  in  some  respects.  For  one,  I  am  disposed  to 
believe  that  it  should  be.  But  1  think  we  shall  find  that 
it  will  soon  be  ratified,  substantially  in  its  present  shape. 
Let  us,  then,  assume  that  we  are  to  have  the  governing 
of  Cuba  for  a  considerable  time,  if  not  forever,  and  that 
we  are  to  possess  Puerto  Eico  and  more  or  less  of  the 
Philippine  archipelago,  with  the  duty  of  furnishing  a  gov- 
ernment to  them.  Third,  the  full  annexation  of  Hawaii 
is  an  accomplished  fact;  that,  like  the  other  islands,  has 
come  to  us  as  a  consequence  of  this  war. 

Now  observe,  what  is  often  forgotten,  that  we  have 
actually  turned  a  comer.  We  are  no  longer  considering 
the  expediency  of  entering  upon  a  foreign  colonial  policy; 
we  have  already  begun  upon  it.  All  the  elements  of  the 
problem  of  governing  distant  tropical  dependencies  are 
found  in  the  case  of  Hawaii;  and  Hawaii  was  definitely 
made  a  territory  on  July  7th,  1898.  All  the  rest  of  our 
possessions  involve  merely  a  question  of  more  or  less.  And 
the  questions  that  confront  us  are  simply  these :  Having 
these  islands  on  our  hands,  ( 1 )  What  can  we  do  with  them  ? 
(2)  What  should  we  do  with  them?  In  other  words,  (1) 
What  constitutional  power  have  we  in  the  matter;  and 
(2)  What  is  our  true  policy? 

I.  In  the  first  place,  as  to  our  constitutional  power,  that 
is  a  question  of  constitutional  law.  Let  me  at  once  and 
shortly  say  that,  in  my  Judgment,  there  is  no  lack  of  power 
in  our  nation,  —  of  legal,  constitutional  power,  to  govern 
these  islands  as  colonies,  substantially  as  England  might 
govern  them;  that  we  have  the  same  power  that  other 
nations  have ;  and  that  we  may,  subject  to  the  agreements 
of  the  treaty,  sell  them,  if  we  wish,  or  abandon  them,  or 
set  up  native  governments  in  them,  with  or  without  a  pro- 
tectorate, or  govern  them  ourselves.  I  take  it  for  granted 
that  we  shall  not  sell  them  or  abandon  them ;  that  we  shall 


158  LEGAL   ESSAYS 

hold  them  and  govern  them,  or  provide  governments  for 
them. 

In  considering  this  matter  of  constitutional  power,  it  is 
necessary,  in  view  of  what  we  are  reading  in  the  newspapers 
nowadays,  to  discriminate  a  little.  Our  papers  and  maga- 
zines and  even  the  discourses  of  distinguished  public  men, 
are  sometimes  a  little  confused.  We  must  disentangle  views 
of  political  theory,  political  morals,  constitutional  policy, 
and  doctrines  as  to  that  convenient  refuge  for  loose  thinking 
which  is  vaguely  called  the  "spirit"  of  the  Constitution, 
from  doctrines  of  constitutional  law.  Very  often  this  is 
not  carefully  and  consistently  done.  And  so  it  happens, 
as  one  looks  back  over  our  history  and  the  field  of  political 
discussions  in  the  past,  that  he  seems  to  see  the  whole  region 
strewn  with  the  wrecks  of  the  Constitution,  —  of  what 
people  have  been  imagining  and  putting  forward  as  the 
Constitution.  That  it  was  unconstitutional  to  buy  Louisi- 
ana and  Florida;  that  it  was  unconstitutional  to  add  new 
states  to  the  Union  from  territory  not  belonging  originally 
to  it ;  that  it  was  unconstitutional  to  govern  the  territories 
at  all;  that  it  was  unconstitutional  to  charter  a  bank,  to 
issue  paper  money,  to  make  it  a  legal  tender,  to  enact  a 
protective  tariff,  —  that  these  and  a  hundred  other  things 
were  a  violation  of  the  Constitution  has  been  solemnly  and 
passionately  asserted  by  statesmen  and  lawyers.  Nothing 
that  is  now  going  forward  can  exceed  the  vehemence  of 
denunciation,  and  the  pathetic  and  conscientious  resistance 
of  those  who  lifted  up  their  voices  against  many  of  these 
supposed  violations  of  the  Constitution.  The  trouble  has 
been,  then  as  now,  that  men  imputed  to  our  fundamental 
law  their  own  too  narrow  construction  of  it,  their  own  theory 
of  its  purposes  and  its  spirit,  and  sought  thus,  when  the 
question  was  one  of  mere  power,  to  restrict  its  great  liberty. 
That  instrument,  astonishingly  well  adapted  for  the  pur- 
poses of  a  great,  developing  nation,  shows  its  wisdom  mainly 
in  the  shortness  and  generality  of  its  provisions,  in  its 
silence,  and  its  abstinence  from  petty  limitations.     As  it 


OUR  NEW  POSSESSIONS  159 

survives  fierce  controversies  from  age  to  age,  it  is  forever 
silently  bearing  witness  to  the  wisdom  that  went  into  its 
composition,  by  showing  itself  suited  to  the  purposes  of 
a  great  people  under  circumstances  that  no  one  of  its  makers 
could  have  foreseen.  Men  have  found,  as  they  are  finding 
now,  when  new  and  unlooked-for  situations  have  presented 
themselves,  that  they  were  left  with  liberty  to  handle  them. 
Of  this  quality  in  the  Constitution  people  sometimes  fool- 
ishly talk  as  if  it  meant  that  the  great  barriers  of  this 
instrument  have  been  set  at  naught,  and  may  be  set  at 
naught,  in  great  exigencies;  as  if  it  were  always  ready 
to  give  way  under  pressure ;  and  as  if  statesmen  were  always 
standing  ready  to  violate  it  when  important  enough  occa- 
sion arose.  What  generally  happens,  however,  on  these 
occasions,  is  that  the  littleness  and  the  looseness  of  men's 
interpretation  of  the  Constitution  are  revealed,  and  that 
this  great  instrument  shows  itself  wiser  and  more  far- 
looking  than  men  had  thought.  It  is  forever  dwarfing  its 
commentators,  both  statesmen  and  judges,  by  disclosing 
its  own  greatness.  In  the  entire  list  of  the  judges  of  our 
highest  court,  past  and  present,  in  the  business  of  inter- 
preting the  Constitution,  few  indeed  are  the  men  who  have 
not,  now  and  again,  signally  failed  to  appreciate  the  large 
scope  of  this  great  charter  of  our  national  life.  Petty 
judicial  interpretations  have  always  been,  are  now,  and 
always  will  be,  a  very  serious  danger  to  the  country. 

As  regards  the  Constitution,  let  me  say  one  or  two  things 
more.  A  great  deal  is  said,  and  rightly  said,  as  to  the 
limitations  in  the  grants  of  power  to  the  general  government. 
Doubtless  this  Constitution  is  essentially  different  from 
those  of  the  States,  in  that  the  provisions  of  the  latter  affect 
a  government  which  has  all  power,  except  so  far  as  the  State 
has  parted  with  any  of  it  to  the  United  States,  or  as  it 
is  withheld  by  the  State  constitution  itself.  On  the  other 
hand,  the  United  States  did  not  begin  with  any  such  reser- 
voir of  power;  it  had  and  has  only  what  is  granted  in  the 
Federal  Constitution  for  the  general  purposes.     But  these 


160  LEGAL   ESSAYS 

granted  powers,  while  limited  in  number,  are  supreme,  full, 
and  absolute  in  their  reach,  subject  only  to  any  specific 
abatements  made  in  the  Constitution  itself.  The  situation 
brought  about  by  the  remarkable  transaction  of  a  century 
ago,  when  our  States  combined  to  create  the  United  States, 
may  be  truly  conceived  of  as  the  setting  up  of  a  single  great 
power  which,  for  certain  general  ends  should  be,  to  each 
one  of  the  States,  its  other  half.  In  each  State,  if  you  look 
about  for  the  total  contents  of  sovereign  power,  you  find 
a  part  of  it,  the  local  part,  in  the  State,  and  the  rest  of  it 
in  the  general  government.  Each  holds  the  same  relation 
to  this  common  government;  each  has  contributed  to  it 
the  same  proportion  of  its  total  stock;  so  that  at  the  end 
of  your  search  you  find,  as  regards  certain  of  the  chief 
governmental  functions  —  for  example  the  war  power  and 
the  power  of  dealing  with  foreign  nations  —  that  there 
is  but  one  government  in  the  country,  and  that,  so  far  as 
these  particular  functions  are  concerned,  it  is  as  sovereign 
as  each  State  was  before  it  parted  with  its  powers;  just 
as  sovereign,  as  regards  these  immense  and  far-reaching 
functions  and  for  all  the  purposes  that  they  involve,  as  any 
one  of  the  great  nations  of  the  world.  If  you  ask  what  this 
nation  may  do  in  prosecuting  the  ends  for  which  it  was 
created,  the  answer  is.  It  may  do  what  other  sovereign 
nations  may  do.  In  creating  this  new  nation,  it  was  not 
intended  by  the  States,  except  as  they  have  said  so  in  the 
Constitution,  to  diminish  the  scope  of  the  great  powers  they 
parted  with.  Their  aim  was  merely  to  secure  greater 
efficiency  by  putting  the  power  in  stronger  hands,  hands  that 
could  strike  with  the  undiminished  strength  of  all.  No  part 
of  sovereignty  vanished  in  this  process  of  transferring  it. 
Of  course,  the  general  government  was  submitted  to  some 
restraints  in  the  national  Constitution,  and  whatever  these 
are,  they  are  an  abatement  from  the  fulness  of  absolute 
power  in  the  particulars  to  which  they  relate.  But,  speak- 
ing generally,  it  is  true  that  while  one,  two,  six  or  eight 
specific  powers  only  are  given  to  the  general  government. 


OUR  NEW   POSSESSIONS  161 

yet  as  regards  these  it  is  the  fulness  of  power  that  is  given. 
So  far  as  the  general  welfare  and  the  other  great  ends  men- 
tioned in  the  preamble  to  the  Constitution  can  be  secured 
by  intercourse  with  foreign  nations,  peaceful  or  warlike, 
by  the  post-office,  or  by  the  regulation  of  interstate  com- 
merce, these  matters  are  intrusted  to  the  general  govern- 
ment in  their  fulness.  In  these  particulars,  as  Chief  Justice 
Marshall  said,  "  America  has  chosen  to  be  a  nation."  "  In 
war,"  said  that  great  judge  in  1821,  "we  are  one  people. 
In  making  peace  we  are  one  people.  In  all  commercial 
regulations  we  are  one  and  the  same  people.  In  many  other 
respects  the  American  people  are  one.  .  .  .  America  has 
chosen  to  be  in  many  respects  and  to  many  purposes  a 
nation;  and  for  all  these  purposes  her  government  is  com- 
plete; to  all  these  objects  it  is  competent.  The  people 
have  declared  that  in  the  exercise  of  all  powers  given  for 
these  objects  it  is  supreme."  ^  When,  a  few  years  ago,  it 
was  denied,  as  it  has  often  been,  that  Congress  could  forbid 
the  transmission  of  objectionable  matter  through  the  mails, 
distinguished  counsel  urged  before  the  Supreme  Court  that 
since  the  express  powers  given  in  the  Constitution  were 
limited  in  their  exercise  to  the  objects  for  which  they  were 
intrusted,  the  power  to  establish  post-offices  and  post-roads 
was  restricted  to  the  furnishing  of  mail  facilities.  But  the 
court  replied:  The  States  could  have  excluded  this  mail 
matter  before  the  Union  was  formed ;  and  "  when  the  power 
to  establish  post-offices  and  post-roads  was  surrendered  to 
the  Congress  it  was  as  a  complete  power,  and  the  grant  car- 
ried with  it  the  right  to  exercise  all  the  powers  which  made 
that  grant  effective."  2  Many  times  has  this  doctrine  been 
reasserted  by  our  highest  court,  that  when  a  great  sovereign 
power,  like  those  referred  to  by  the  Chief  Justice,  has  been 
conferred,  in  however  few  words,  all  of  it  was  given,  unless 

*  [Cohens  v.  Virginia,  6  Wheat.  264,  413,  414.  "These  states  are 
constituent  parts  of  the  United  States.  They  are  memhers  of  one  great 
empire,  —  for  some  purposes  sovereign,  for  some  purposes  subordinate." 
6  Wheat.  414.] 

=•  In  re  Rapier,  143  U.  S.  110. 

11 


162  LEGAL  ESSAYS 

some  qualification  was  to  be  found  in  the  Constitution  it- 
self; and  that  the  general  limitations  of  the  Constitution 
related  rather  to  the  number  of  the  powers  than  to  the  reach 
of  them.  They  are  intrusted  to  the  general  government,  to 
be  used  as  absolutely  as  the  States  themselves  could  have 
used  them,  in  handling  those  general  interests  which  they 
confided  to  the  nation.^ 

The  power  of  acquiring  colonies  is  an  incident  to  the 
function  of  representing  the  whole  country  in  dealing  with 
other  nations  and  states,  whether  in  peace  or  war.  The 
power  of  holding  and  governing  them  follows,  necessarily, 
from  that  of  gaining  them.  As  regards  the  power  of  acquir- 
ing colonies  the  Constitution  has  no  restraint  upon  the 
sound  judgment  of  the  political  department  of  the  United 
States. 

Now  let  us  observe  an  important  point:  when  a  new 
region  is  acquired  it  does  not  at  once  and  necessarily  become 
a  part  of  what  we  call  the  "  territory  "  of  the  United  States. 
Or,  to  speak  more  exactly,  the  people  in  such  regions  do  not 
necessarily  hold  the  same  relation  to  the  nation  which  the 
occupants  of  the  territories  hold.  It  is  for  the  political 
department  of  the  government,  that  is.  Congress  or  the 
treaty-making  power,  to  determine  what  the  political  rela- 
tion of  the  new  people  shall  be.  Neither  they,  nor  their 
children  bom  within  the  newly  acquired  region,  necessarily 
become  citizens  of  the  United  States.  Take,  for  illustration, 
the  case  of  our  tribal  Indians.  Always  many  of  them  have 
lived  within  the  territories  of  the  United  States.  Our  gov- 
ernment has  mainly  followed  the  example  of  our  English 
ancestors  in  recognizing  them  as  tribes  rather  than  indi- 
viduals. Congress  and  the  treaty-making  power  have  dealt 
with  them  as  a  separate  people,  who  have  their  own  rules, 

'  ["  Whenever  an  object  occurs  to  the  direction  of  which  no  particu- 
lar State  Is  competent,  the  management  of  It  must  of  necessity  belong  to 
the  United  States  in  Congress  assembled.  There  are  many  objects  of 
this  extended  nature.  The  purchase,  the  sale,  the  defence,  and  the 
government,  of  lands  and  countries  not  within  any  State,  are  all  in- 
cluded under  this  description."  1  Wilson's  Works  (Andrews  ed.),  558, 
559.     See  also  Marshall,  C.  J.,  in  Gibbons  v.  Ogden,  9  Wheat.  187-189.] 


OUR  NEW  POSSESSIONS  163 

customs  and  laws,  although  living  on  our  land.  While 
regulating  "  commerce  with  the  Indian  tribes,"  to  use  the 
phrase  of  the  Constitution,  and  so  laying  down  rules  for 
governing  the  intercourse  between  Indians  and  others,  and 
punishing  crimes  committed  by  tribal  Indians  on  whites, 
or  vice  versa,  Congress  has  never  yet,  by  any  wholesale  pro- 
vision, undertaken  to  bring  them  fully  under  subjection  to 
us.  That  Congress  might  do  this  at  any  time,  is  settled. 
It  has  done  it  partly  and  by  steps  and  degrees,  as  much  as 
it  pleased,  all  along.  It  has  ended  the  business  of  making 
treaties  with  them,  and  has  begun  to  punish  crimes  com- 
mitted by  one  tribal  Indian  on  another  in  the  Indians'  own 
country.  And  yet  the  Supreme  Court  has  held  that  the 
Fourteenth  Amendment  did  not  make  tribal  Indians  citi- 
zens of  the  United  States.  That  Amendment,  coming  into 
effect  in  July,  1868,  provided  that  "  all  persons  bom  or 
naturalized  in  the  United  States  and  subject  to  the  juris- 
diction thereof "  are  citizens  of  the  United  States.  Dis- 
tinguished persons  used  to  think  that  all  tribal  Indians  bom 
in  our  country,  like  the  Chinese,  as  recentl}'  held,  were  thus 
made  citizens  of  the  United  States.  That  was  the  publicly 
expressed  opinion  of  Senator  Hoar  and  of  Senator  Morgan. 
But  fifteen  years  ago  the  contrary  was  decided  by  the  Su- 
preme Court  of  the  United  States.^  Since  they  are  born, 
said  the  Court,  "  members  of  and  owing  immediate  alle- 
giance to  one  of  the  Indian  tribes,  an  alien  though  dependent 
power,  although  in  a  geographical  sense  born  in  the  United 
States,"  they  are  in  the  same  case  with  children  of  a  foreign 
ambassador  bom  here.  Yet,  remember,  we  hold  these  peo- 
ple, the  Indians,  in  the  hollow  of  our  hand;  it  is  in  our 
power,  and  has  been  from  the  beginning,  and  not  in  theirs, 
to  say  whether  they  shall  continue  to  hold  this  relation. 
We  can  reduce  them  at  any  moment  to  full  subjection ;  so 
that  we  are  to  observe  that  the  question  of  whether,  while 
living  and  being  born  here,  they  shall  become  citizens,  is 

1  Elk  V.  Wilkins,  112  U.  S.  94. 


164  LEGAL  ESSAYS 

a  question  to  be  determined  by  the  mere  will  and  pleasure 
of  Congress.  Long  ago,  more  than  fifty  years  ago,  in  affirm- 
ing the  right  of  the  United  States  to  exercise  its  juris- 
diction in  the  "  Indian  country,"  Chief  Justice  Taney, 
giving  the  opinion  of  the  Supreme  Court,  said,  "  But  .  .  . 
were  the  right  and  propriety  of  exercising  this  power  now 
open  to  question,  yet  it  is  a  question  for  the  law-making  and 
political  power  of  the  government  and  not  for  the  judicial. 
It  is  our  duty  to  expound  and  execute  the  law  as  we  find  it, 
and  we  think  it  too  firmly  and  clearly  established  to  admit 
of  dispute  that  the  Indian  tribes  residing  within  the  terri- 
torial limits  of  the  United  States  are  subject  to  their  au- 
thority." '  We  may  take  it,  then,  as  settled,  that  it  is  for 
Congress  or  the  treaty-making  power  to  say  what  shall  be 
the  permanent  political  position  of  the  new  people.  As  to 
no  one  of  them  is  it  yet  determined,  except  in  the  case  of 
Hawaii,  that  it  is  a  "  territory." 

The  Spanish  possessions  are  held  now  and  will  continue 
to  be  held,  as  we  held  the  southern  states  after  the  War  of 
the  Rebellion,  under  military  government.  Such  a  govern- 
ment may  continue  as  long  as  the  political  department  finds 
it  desirable ;  and  it  should  continue  long  enough  to  allow 
of  the  most  deliberate  attention  to  the  problems  involved. 
There  is  an  instance,  as  a  learned  friend  informs  me,  in 
South  America,  still  continuing,  of  a  region  taken  from 
Bolivia  by  Chili  and  held  under  military  government,  pend- 
ing negotiations,  for  the  past  fifteen  years.  As  regards 
permanent  arrangements,  we  may,  if  we  please,  set  up  a 
native  government,  with  or  without  a  protectorate,  or  we 
may  perhaps  establish  some  other  status  of  partial  alle- 
giance analogous  to  that  of  our  tribal  Indians,  or  we  may 
govern  them  precisely  as  we  have  governed  our  territories 
heretofore. 

And  this  brings  us  to  the  question  of  the  government  of 
these  territories,  —  a  great,  important,  and  ill-understood 

>   [TT.  S.  V.  Rogers.  4  How.  .567,  572.] 


OUR  NEW  POSSESSIONS  165 

topic.  Hawaii,  as  I  said,  has  become  a  '*'  territory."  The 
other  islands  have  not.  What  is  it,  to  be  a  "  territory " 
of  the  United  States?  It  is  this:  It  is  to  be  a  region  of 
country  belonging  to  the  nation,  and  under  its  absolute  juris- 
diction and  control,  except  as  the  fulness  of  this  control 
may  be  qualified  in  a  few  particulars  by  the  Constitution. 
As  regards  self-government  and  political  power,  a  territory 
has  no  constitutional  guaranties;  its  rights,  in  these  re- 
spects, are  what  Congress  or  the  treaty-making  power  thinks 
it  well  to  allow.  It  has  no  right  to  become  a  State  unless 
it  shall  have  been  so  stipulated  with  the  former  owner  when 
ceding  it.  The  opinion  that  we  can  only  hold  territory  for 
the  purpose  of  nursing  it  into  a  State  is  merely  a  political 
theory.  We  have  the  constitutional  power  to  do  what  it 
seems  wise  to  do ;  that  matter  is  left  wholly  open  to  the 
political  department.  A  territory  may  be  governed  directly 
by  Congress,  as  the  District  of  Columbia,  formerly  called 
the  Territory  of  Columbia,  now  is ;  or  it  may  have  such 
portion  of  self-government  as  Congress  chooses  to  allow  it. 
But  if  any  is  allowed,  it  may  all  be  taken  away  at  any 
moment.  We  send  out  from  Washington  to  the  territories, 
and  always  have  sent  to  them,  their  governors,  secretaries, 
marshals,  and  judges.  Their  whole  executive  and  judicial 
power  is  imposed  upon  them  by  the  United  States.  They 
have  not,  always,  even  had  legislative  power;  and  we  may 
and  do  abolish  ^^nd  change  their  laws  when  we  please. 

Now  observe,  this  is  exactly  the  process  of  governing  a 
colony.  In  fact  these  territories  are,  and  always  have  been, 
colonies,  dependencies.  There  is  no  essential  difference  be- 
tween them  and  the  leading  colonies  of  England,  except 
that  England  does  not,  and  would  not  dare  to  exercise  as 
full  a  control  over  her  chief  colonies  as  we  do  over  ours. 
I  observe  in  a  recent  magazine  ("Harper's  Monthly,"  for 
January,  1899)  a  valuable  and  accurate  statement  on  this 
subject  by  Professor  Hart,  our  learned  and  indefatigable 
professor  of  history  at  Harvard.  He  remarks  truly  that  the 
United  States,  for  more  than  a  century,  "  has  been  a  great 


166  LEGAL  ESSAYS 

colonial  power  without  suspecting  it";  and  he  points  out 
that  the  conception  of  a  colony  is  that  of  a  "  tract  of  terri- 
tory subordinate  to  the  inhabitants  of  a  different  tract  of 
country,  and  ruled  by  authorities  wholly  or  in  part  respon- 
sible to  the  main  administration,  instead  of  to  the  people 
of  their  own  region."  Great  distance,  he  remarks,  is  not 
necessarily  involved,  nor  physical  separation  from  the  home 
country,  nor  the  exercise  of  arbitrary  control,  nor  the  pres- 
ence of  an  alien  and  inferior  race.  "  The  important  thing 
about  colonies  is  the  co-existence  of  two  kinds  of  govern- 
ment, with  an  ultimate  control  in  one  geographical  region, 
and  dependence  in  the  other;  and  since  1784  there  has 
never  been  a  year  when  in  the  United  States  there  has  not 
been,  side  by  side,  such  a  ruling  nation  and  such  subject 
colonies ;  only  we  choose  to  call  them  '  territories.'  " 

When  people  permit  themselves  to  talk,  then,  of  "  vassal 
states  and  subject  peoples,"  as  if  the  necessary  condition 
of  colonies,  say  of  Canada  or  Australia,  or  our  territories, 
were  one  of  slavery;  when  they  talk  of  the  holding  of  col- 
onies as  contrary  to  the  spirit  of  our  free  institutions,  of 
its  being  un-American,  and  having  a  tendency  to  degrade 
our  national  character;  when  they  quote  and  pervert  the 
large  utterances  of  the  Declaration  of  Independence,  and 
remind  us,  as  if  it  were  pertinent  to  any  questions  now  up, 
that  government  derives  its  just  powers  from  the  consent 
of  the  governed,  —  let  them  be  reminded  of  qur  own  national 
experience.  Has  it  been  "  un-American "  to  govern  the 
territories  and  the  District  of  Columbia  as  we  have?  Has 
it  been  contrary  to  the  fundamental  principles  of  free 
government  or  the  Declaration  of  Independence?  Has  it 
tended  to  the  degradation  of  our  national  character?  Has 
England  suffered  in  her  national  character  by  governing 
Canada  and  Australia  as  she  does?  Or  have  England  and 
the  United  States  done  sensibly  and  well  in  so  doing  ?  Eng- 
land had  learned,  and  taught,  the  lesson  of  where  the  just 
powers  of  government  come  from,  as  long  ago,  to  say  the 
least,  as  1688,  when  she  gave  the  death  blow  to  the  doctrine 


Ol^R  NEW   POSSESSIONS  167 

of  the  divine  right  of  kings.  Ninety  years  later  we  had  to 
remind  her  of  that  great  doctrine,  when  she  was  making 
us  suffer  from  a  stupid  and  oppressive  form  of  colonial 
policy.  But  the  entire  recent  history  of  England  and  of 
the  United  States  shows  that  a  wise  and  free  colonial  ad- 
ministration, as  regards  the  people  who  are  governed,  is 
one  of  the  most  admirable  contrivances  for  the  improvement 
of  the  human  race  and  their  advancement  in  happiness  and 
self-government,  that  has  ever  been  vouchsafed  to  men. 

On  this  head  let  me  say  one  or  two  things  more.  We 
are  going  to  have  many  perils  and  to  commit  many  blun- 
ders in  our  new  career;  and  yet  we  shall  have  some  great 
gains.  N"ot  the  least  of  the  benefits  will  be  found  in  the 
reflex  effect  of  colonial  administration  upon  the  hojne  gov- 
ernment, and  its  people  and  public  men.  These  new  duties 
will  tend  to  enlarge  men's  ideas  of  government  and  the 
ends  of  government.  Our  own  experiments  in  the  territories 
have  been  comparatively  simple;  so  that  already,  in  dis- 
cussing our  larger  problems,  we  are  finding  good  from 
having  them  forced  upon  us.  The  follies  of  the  silver 
agitation  and  of  much  of  our  policy  as  to  revenue,  naviga- 
tion, and  trade;  and  the  childish  literalness  which  has 
crept  into  our  notions  of  the  principles  of  government,  as 
if  all  men,  however  savage  and  however  unfit  to  govern 
themselves,  were  oppressed  when  other  people  governed 
them;  as  if  self-government  were  not  often  a  curse;  and 
as  if  a  great  nation  does  not  often  owe  to  its  people,  or  some 
part  of  them,  as  its  chief  duty,  that  of  governing  them  from 
the  outside,  instead  of  giving  them  immediate  control  of 
themselves ;  —  these  things  are  taking  their  proper  place 
in  the  wholesome  education  of  the  discussions  that  are  now 
going  forward.  There  is  good  ground  to  expect,  I  think, 
that  among  the  incidental  advantages  of  our  new  policy 
may  come  to  us  a  larger  and  juster  style  of  political  think- 
ing, and  I  may  add,  of  Judicial  thinking,  on  constitutional 
questions,  and  a  soberer  type  of  political  administration. 
Even  the  nettle  danger  is  to  help  us  in  these  respects. 


168  LEGAL   ESSAYS 

I  have  something  more  to  say  of  our  territories.  And 
first  let  me  shortly  trace  their  history.  Before  the  Revolu- 
tionary War  was  over,  and  several  years  before  the  Consti- 
tution of  the  United  States  took  effect,  the  Confederation 
had  begun  to  receive  cessions  of  territory  from  the  original 
States.  The  process  continued  after  the  present  govern- 
ment came  into  existence ;  and  by  the  year  1802,  the  United 
States  held,  under  these  cessions,  besides  the  District  of 
Columbia,  a  vast  region  now  represented  by  nine  States, 
namely,  by  a  part  of  Minnesota  and  by  the  States  of  Wis- 
consin, Michigan^  Ohio,  Indiana,  Illinois,  Tennessee,  Ala- 
bama, and  Mississippi.  These  regions  now  belonged  to  the 
nation.  They  were  not  States,  but  they  had  been  accepted 
by  the  national  government  under  a  guaranty  that  eventu- 
ally they  might  become  States.  It  was  not  necessary  to 
make  such  a  guaranty;  the  Constitution  did  not  require 
it ;  it  was  purely  an  arrangement  of  policy.  Then,  in  1803, 
came  that  enormous  accession,  by  purchase  from  France 
for  $15,000,000,  of  a  tract  reaching  (as  we  afterwards 
insisted  in  the  Oregon  controversy)  from  the  mouth  of 
the  Mississippi  to  the  Pacific  at  Vancouver,  a  region  vastly 
larger  than  the  original  country  east  of  the  Mississippi.^ 
These  great  regions,  all  together,  composed  what  Marshall 
called  in  1820  the  "  American  Empire."  The  new  tract 
included  what  now  makes  up  fifteen  States  and  two  terri- 
tories; namely,  the  States  of  Washington,  Oregon,  Montana, 
Idaho,  Wyoming,  the  two  Dakotas,  Nebraska,  a  part  of 
Minnesota,  Colorado,  and  Kansas,  the  States  of  Iowa,  Mis- 
souri, Arkansas,  and  Louisiana,  the  territory  of  Oklahoma 
and  the  Indian  Territory.  At  the  end  of  the  next  decade, 
in  1819,  this  example  of  purchasing  territory  was  followed 
by  gaining  from  Spain  the  territory  of  Florida,  at  an  out- 
lay of  $5,000,000.  Then,  in  1845,  came  a  joint  resolution 
of  Congress,  not  a  treaty,  by  which  the  republic  of  Texas 
was  added  directly  to  the  Union,  as  Vermont  and  Kentucky 

*  It  is  well  known  that  our  claim  went  farther,  —  both  as  regards 
the  grounds  of  it,  and  the  region  it  covered. 


OUR  NEW  POSSESSIONS  169 

had  been  in  1791  and  1792,  without  ever  passing  through 
the  pupilage  of  a  separate  dependency  of  the  nation.  Then 
followed  war  with  Mexico,  on  a  question  of  the  true  bound- 
ary of  Texas;  and  as  our  neighbor,  Mr.  John  Fiske,  tells 
us,  in  his  valuable  history  of  the  United  States,  "  When 
peace  was  made  with  Mexico  in  February,  1848,  it  added 
to  the  United  States  an  enormous  territor}^,  equal  in  area 
to  Germany,  France,  and  Spain  added  together."  This  was 
supplemented  by  a  purchase  from  Mexico  in  1853.  The 
whole  region  is  now  occupied  by  five  States  and  two  terri- 
tories, namely,  by  the  States  of  California,  Nevada,  and 
Utah,  a  part  of  the  States  of  Colorado  and  Kansas,  and 
the  territories  of  Arizona  and  New  Mexico. 

Then  in  1867  came  the  purchase  of  Alaska  from  Eussia 
for  $7,000,000.  This  was  a  novel  accession;  for  it  was 
no  longer  contiguous  territory  that  was  brought  in,  but 
a  region  separated  from  us  by  a  breadth  of  foreign  country 
covering  several  degrees  of  latitude.  Alaska  stretches 
towards  the  north  for  more  than  fifteen  degrees,  and  away 
up  into  the  Arctic  Ocean.  It  reaches  westward  until  its 
mainland  is  only  separated  from  Asia  by  about  fifty  miles 
of  water,  at  Behring  Straits.  And  then  our  Aleutian  archi- 
pelago continues  out  under  the  continent  of  Asia,  into  the 
longitude  of  New  Zealand.  This  acquisition  shifted  the 
geographical  middle  of  our  country  so  as  to  place  it  some 
way  out  in  the  Pacific  Ocean. 

And  now  we  reach  the  recent  and  pending  cessions.  The 
Hawaiian  Islands  have  now,  six  months  ago,  been  added  to 
our  territories.  They  are  2100  miles  out  in  the  ocean, 
southwesterly  from  San  Francisco,  in  the  latitude  of  Puerto 
Eico  and  Cuba,  and  in  the  longitude  of  the  western  main- 
land of  Alaska.  Having  failed  in  accomplishing  this 
annexation  by  a  treaty,  the  promoters  of  it  secured  the 
result,  after  the  example  of  Texas,  by  a  joint  resolution, 
during  the  war  with  Spain  and  as  an  incident  to  it.  The 
resolution  is  simply  the  acceptance  of  an  unconditional 
offer  from  Hawaii.      In  the  language  of  the  resolution, 


170  LEGAL  ESSAYS 

"  Said  cession  is  accepted ;  .  .  .  the  said  Hawaiian  Islands 
and  their  dependencies  are  hereby  annexed  as  a  part  of 
the  territory  of  the  United  States  and  are  subject  to  the 
sovereign  dominion  thereof."  Till  Congress  provides  for 
their  government  they  are  under  the  President's  supreme 
control.  A  few  temporary  provisions  only,  as  to  customs, 
treaties,  and  immigration,  are  made  in  the  resolution.  No 
promise  of  becoming  a  State  has  been  made,  and  no  assur- 
ance as  to  the  status  or  control  of  the  population. 

The  proposition  now  pending  in  Congress  for  the  estab- 
lishment of  a  territorial  government  in  Hawaii  gives  these 
islands  the  full  status  of  a  territory  of  the  United  States, 
under  a  governor  and  territorial  secretary'  appointed  by  the 
President,  with  power  in  the  governor  to  appoint  the  judges 
and  other  officers,  with  the  consent  of  the  territorial  senate. 
The  legislature  is  to  be  composed  of  a  house  of  representa- 
tives elected  by  the  people  who  are  male  citizens  of  the 
United  States  twenty-one  years  of  age;  that  is,  as  it  is 
rather  oddly  expressed,  "  all  white  persons,  including  Portu- 
guese and  persons  of  African  descent,"  and  all  of  the 
Hawaiian  race  who  were  citizens  of  the  Hawaiian  Republic 
just  before  the  transfer  of  the  sovereignty  to  the  United 
States;  and  of  a  senate,  elected  by  such  persons  as  could 
vote  for  representatives,  being  also  owners  in  their  own 
right  of  real  property  in  the  territory  of  not  less  than 
$1000,  and  paying  taxes  for  the  last  year,  or  being  in  receipt 
during  that  year  of  a  money  income  not  less  than  $600. 

The  commissioners  who  have  prepared  a  form  of  govern- 
ment for  Hawaii  intimate  an  opinion  that  it  cannot  form 
a  precedent  for  the  other  islands  now  acquired  or  coming 
in.  They  suggest  the  need  of  more  outside  control  for  the 
new  possessions.  "  The  underlying  theory  of  our  govern- 
ment," they  say,  "  is  the  right  of  self-government,  and  a 
people  must  be  fitted  for  self-government  before  they  can 
be  trusted  with  the  responsibilities  and  duties  attaching 
to  free  government."  And  again  they  say  that  "  the  Ameri- 
can idea  of  universal  suffrage  presupposes  that  the  body 


OUR  NEW   POSSESSIONS  171 

of  citizens  who  are  to  exercise  it  in  a  free  and  independent 
manner  have  by  inheritance  or  education  such  knowledge 
and  appreciation  of  the  responsibilities  of  free  suffrage, 
and  of  a  full  participation  in  the  sovereignty  of  the  country, 
as  to  be  able  to  maintain  a  republican  government." 

What  I  have  said,  so  far,  tends  to  show  that  there  is  no 
constitutional  difficulty  in  our  acquiring,  holding,  and  per- 
manently governing  territory  of  any  sort  and  situated  any- 
where. Whatever  restraints  may  be  imposed  on  our  congress 
and  the  executive  by  the  Constitution  of  the  United  States, 
they  have  not  made  impossible  a  firm  and  vigorous  adminis- 
tration of  government  in  the  territories.  Witness  especially 
the  case  of  the  District  of  Columbia  and  the  Territory  of 
Utah.  It  is  not  to  be  anticipated  that  they  will  have  any 
such  effect  in  our  island  dependencies. 

But  what  exactly  is  the  operation  of  the  Constitution  in 
the  territories?  A  difficult  question,  and  very  fit  to  be 
deliberately  and  fully  considered  by  Congress  and  by  the 
Supreme  Court:  a  question  never  yet  satisfactorily  disposed 
of;  perhaps  one  not  to  be  answered  finally  by  a  court. 
It  would  be  easy  to  cite  dicta  and  even  decisions  that  extend 
the  Constitution  and  what  we  call  its  bill  of  rights  to  the 
territories ;  but  no  judicial  decision  yet  made  has  thoroughly 
dealt  with  the  matter,  or  can  be  regarded  as  at  all  final  on 
a  question  so  very  grave. ^ 

It  is  sometimes  supposed  that  the  effect  of  the  early 
amendments  and  other  parts  of  the  Constitution  which 
make  up  what  is  called  its  bill  of  rights,  is  that  of  absolutely 
withholding  power  from  the  nation  to  govern  in  the  for- 

1  [See  Downes  v.  Bidwell,  182  U.  S.  244;  Hawaii  v.  Manlsichi,  190 
U.  S.  197 ;  Dorr  v.  United  States,  195  U.  S.  138 ;  Rassmussen  v.  United 
States,  197  U.  S.  516  ;    1  Kent's  Com.  *.385. 

"Compare  the  doctrine  of  U.  S.  v.  Kagama,  118  U.  S.  375  (1886), 
deciding  tliat  the  United  States  has  full  legislative  power  over  tribal 
Indians,  on  reservations  in  the  States  as  well  as  the  Territories,  —  and 
the  grounds  on  which  it  is  put.  ...  In  dealing  with  the  tribal  Indians, 
the  United  States  government  has  never  proceeded  on  the  theory  that 
its  action  was  restrained  by  the  amendments,  or  by  other  like  clauses 
in  the  body  of  the  Federal  Constitution."  1  Thayer's  Const.  Cas.  363,  n. 
So  Talton  V.  Mayes,  163  U.  S.  376.] 


172  LEGAL  ESSAYS 

bidden  way;  not  merely  within  the  States,  but  within  the 
territories,  and  anywhere  and  everywhere,  and  under  all 
circumstances  whatever;  so  that,  for  instance,  no  criminal 
trial  could  proceed  anywhere  under  the  authority  of  the 
United  States  without  those  safeguards  of  a  grand  jury  and 
petit  jury,  which  would  be  necessary  within  the  States.  But 
that  is  not  so.^ 

Let  me  explain  what  I  mean  by  an  illustration.  Nineteen 
years  ago,  a  seaman  upon  an  American  vessel,  charged  with 
murder  committed  in  the  waters  of  Japan,  was  tried  in  that 
country  before  the  American  consul  and  four  associates. 
Against  his  objection  that  he  was  entitled  to  be  accused 
by  a  grand  jury  and  tried  by  a  petit  jury,  he  was  found 
guilty  by  the  consular  tribunal  and  sentenced  to  death. 
The  President  of  the  United  States  commuted  his  sentence 
to  imprisonment  for  life  in  the  State  prison  at  Albany. 
Ten  years  later  the  convict  sought  by  a  writ  of  habeas 
corpus  for  a  discharge  on  the  ground  that  he  was  held  in 
violation  of  the  Constitution,  in  that  he  was  entitled  to 
a  jury  and  a  grand  jury;  and  that  the  legislation  of  Con- 
gress, under  the  treaty,  providing  for  the  consular  tribunal 

'  ["1.  As  to  the  political  catch  which  we  have  heen  hearing  so  much, 
about  the  Constitution  following  the  flag  or  not  following  it,  we  may 
collect  from  all  the  opinions  [in  Downes  v.  Bidwell,  182  U.  S.  2441, 
including  (as  to  this  matter)  those  of  the  minority,  that  wherever  the 
flag  is  rightfully  carried  the  Constitution  attends  it.  To  be  sure  that  is 
obvious  enough.  That  is  to  say,  no  rightful  power  can  ever  be  exerted 
under  the  authority  of  the  United  States,  which  is  not  founded  on  the 
Constitution.  But  all  parts  of  that  instrument  are  not  relevant  to  all 
inquiries,  or  applicable  to  all  situations.  And,  moreover,  the  silence  of 
the  Constitution  and  its  tacit  references  and  implications,  pointing 
steadily  to  the  usages  of  other  nations,  —  these  go  with  it,  as  well  as 
its  expressions.     The  Constitution  is  not  a  code  of  detailed  precepts. 

"  2.  The  United  States  may  acquire  territory  as  the  result  of  war  and 
treaties,  without  any  qualification  as  to  kind  or  quantity,  or  as  to  the 
character  of  Its  population.  It  may  be  Canada,  or  a  cannibal  island,  or 
an  island  of  slaves  and  slave  owners. 

"  3.  The  mere  acquisition  or  cession  of  a  region  does  not '  incorporate  ' 
it  into  the  United  States  so  as  to  subject  it  generally  to  those  clauses  of 
the  Constitution  which  restrain  and  prohibit  certain  action  by  the  Con- 
gress of  the  United  States ;  but  such  regions  may  be  temporarily  gov- 
erned, in  some  respects,  at  least,  as  seems  most  suitable  for  their  own 
Interests  and  those  of  the  United  States. 

"  4.  The  question  of  when  these  regions  shall  be  '  Incorporated  '  into 
the  United  States  is  for  Congress."  The  Insular  Tariff  Cases,  J.  15. 
Thayer,  15  Ilarv.  Law  Rev.  164.] 


OUR  NEW  POSSESSIONS  173 

which  tried  him,  was  unconstitutional.  But  he  was  re- 
manded, and  the  court  declared,  by  the  mouth  of  Mr.  Justice 
Field,  that  the  Constitution  had  established  a  government 
"  for  the  United  States  of  America,  and  not  for  countries 
outside  their  limits.  The  guaranties  it  affords,"  they  went 
on  to  say,  "  .  .  .  apply  only  to  citizens  and  others  within 
the  United  States,  or  who  are  brought  there  for  trial  for 
alleged  offences  committed  elsewhere,  and  not  to  residents 
or  temporary  sojourners  abroad."  ^ 

We  observe  in  such  a  case  that  our  Congress  may  consti- 
tutionally authorize  a  capital  trial  without  either  Jury  or 
grand  jury,  notwithstanding  the  express  provisions  of  the 
Constitution  and  its  amendments.  The  reason  is  that  these 
provisions  are  not  applicable  to  this  sort  of  case.  *  The  Con- 
stitution has  to  be  read  side  by  side  with  the  customs  and 
laws  of  nations.  The  operation  of  our  Constitution  is  not  to 
create  a  legislative  body  which  is  wholly  bereaved  of  power 
to  do  anywhere  the  things  which  are  forbidden  within  the 
United  States.  It  is  not  stricken  with  inability,  destitute 
of  power,  as  if  paralyzed,  on  these  subjects,  anywhere  and 
everywhere  and  under  all  circumstances.  The  prohibitions, 
although  they  do  not  say  it,  deal  only  with  certain  circum- 
stances and  persons  and  places. 

But  to  return  to  the  specific  question  as  to  the  situation 
of  the  territories.  Hawaii,  as  I  have  said,  is  now  a  "  terri- 
tory " ;  and  other  islands,  although  not  made  "  territories  " 
by  the  treaty,  may  become  such  by  Act  of  Congress.  It 
is  probably  the  prevailing  legal  opinion  to-day  that  a  citizen 
of  a  territory  is  a  citizen  of  the  United  States,  and  that 
children  born  in  the  territories  and  subject  to  our  national 
jurisdiction  are  citizens  of  the  United  States.  Probably, 
also,  it  is  the  prevailing  legal  opinion,  supported  by  some 
judicial  decisions,  that  the  territories  are  a  part  of  the 
United  States,  not  merely  in  the  eye  of  international  law, 
as  all  agree,  but  in  the  sense  of  our  municipal  law ;  so  that, 

1  In  re  Ross,  140  U.  S.  453. 


174  LEGAL   ESSAYS 

e.  g.,  as  judges  have  said,  taxes  must  be  uniform  there  and 
in  the  States.  There  is  also  judicial  authorit}-  for  the 
opinion,  and  I  suppose  it  is  the  more  common  opinion,  that 
those  parts  of  the  Constitution  securing  trial  b}"^  jury  and 
other  personal  rights  are  applicable  to  the  territories. 

There  is,  however,  little  in  the  text  of  the  Constitution 
itself,  and  little,  in  point  of  intrinsic  reason,  in  the  judicial 
opinions  and  dicta  on  these  subjects,  to  prevent  us  from 
holding  that  the  Constitution  does  not  cover  the  territories, 
and  that  the  power  of  the  United  States  in  governing  them, 
except  as  to  one  or  two  particulars,  is  to  be  measured  only 
by  the  terms  of  the  cessions  which  it  has  accepted,  or  of 
the  treaty  under  which  a  territory  may  have  come  in.  It 
may  be  observed  that  States  and  foreign  countries  in  mak- 
ing their  cessions  inserted  such  conditions  and  guaranties 
of  right  as  they  thought  necessary.  Beyond  these  restraints 
it  may  well  be  thought  that  the  territories  are  subject  to 
the  absolute  power  of  Congress. 

I  will  not  go  into  detail  in  discussing  these  matters  now. 
It  would  take  too  much  time,  and  would  require  much  too 
technical  a  discussion  to  be  appropriate  to  this  time  and 
place.  But  let  me  refer  to  a  single  head  of  the  Constitution, 
in  its  relation  to  the  territories,  on  which  the  law  is  perfectly 
settled,  and  which  furnishes  a  clear  suggestion  for  a  right 
solution  of  some  at  least  of  the  questions  in  hand. 

The  great  difficulty  when  the  United  States  Constitution 
was  made,  was  the  adjustment  between  the  power  of  the 
States  and  of  the  United  States.  The  territories  played  no 
part  at  all.  They  were  disposed  of  in  the  Constitution,  so 
far  as  anything  was  said  of  them,  by  placing  them  wholly 
under  the  control  of  Congress.  Article  IV.,  Section  3: 
"  The  Congress  shall  have  power  to  dispose  of,  and  make 
all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States."  In 
Article  I.,  Section  8,  Congress  is  also  given  power  of  ex- 
clusive legislation  in  all  cases  whatever  over  the  district, 
not  exceeding  ten  miles  square,  where  the  seat  of  govern- 


OUR  NEW  POSSESSIONS  175 

ment  should  be  fixed,  and  over  places  purchased  by  con- 
sent of  the  States  for  forts  and  the  like.  Congress  might 
admit  new  States ;  and  these,  no  doubt,  might  be  made  out 
of  the  territories,  because  Congress  had  already  promised 
to  admit  States  out  of  the  Northwest  Territory.  The  ter- 
ritories of  that  period  had  belonged  to  the  States,  and  what- 
ever privileges  the  States  wished  to  secure  they  could  and 
did  secure  in  the  terms  on  which  they  were  ceded.  The 
great  anxiety  was  to  make  a  strong  enough  central  govern- 
ment and  yet  prevent  the  United  States  from  encroaching 
on  the  rights  of  the  States  or  of  the  people  of  the  States. 
One  sees  no  sign  of  any  anxiety  on  the  part  of  the  makers 
of  the  Constitution  as  to  the  status  of  people  belonging  to 
regions  then  ceded  to  the  national  government  or  there- 
after to  be  ceded.  That  was  a  matter  which  had  been 
attended  to  in  the  cessions  actually  made  by  the  parties 
who  made  them;  and  it  might  fairly  be  presumed  that  it 
would  be  attended  to  in  future  cessions,  so  far  as  might  be 
desired  and  found  convenient  between  the  parties  con- 
cerned. What  was  appropriate  in  the  case  of  some  terri- 
tories might  not  be  in  other  cases.  A  cannibal  island  and 
the  Northwest  Territory  would  require  different  treatment; 
and  restraints  beneficial  in  the  one  case  would  be  harmful 
in  the  other. 

It  was  perfectly  natural,  therefore,  and  to  be  expected, 
when  in  dealing  with  the  third  article  of  the  Constitution 
providing  for  the  distribution  of  "  the  judicial  power  of 
the  United  States  "  and  the  tenure  of  the  judges,  that  it 
should  be  treated  as  having  no  application  to  the  territories. 
The  Constitution  provides  that  all  its  judges  shall  hold 
ofhce  during  good  behavior.  But  in  regulating  the  judicial 
system  of  the  territories  Congress  has  always  appointed  the 
judges  for  a  term  of  years,  and  not  during  good  behavior. 
Seventy  years  ago.  Chief  Justice  Marshall  said :  "  These 
courts,  then,  are  not  constitutional  courts  in  which  the 
judicial  power  conferred  by  the  Constitution  on  the  general 
government  can  be  deposited.     They  are  incapable  of  re- 


176  LEGAL  ESSAYS 

oeiving  it.  They  are  legislative  courts,  created  in  virtue 
of  the  general  right  of  sovereignty  which  exists  in  the 
government,  or  in  virtue  of  that  clause  which  enables  Con- 
gress to  make  all  needful  rules  and  regidations  respecting 
the  territory  belonging  to  the  United  States.  The  jurisdic- 
tion with  which  they  are  invested  is  not  a  part  of  that 
judicial  power  which  is  conferred  in  the  third  article  of 
the  Constitution,  but  is  conferred  by  Congress  in  the  ex- 
ecution of  those  general  powers  which  that  body  possesses 
over  the  territories  of  the  United  States.^'  ^  This  doctrine 
has  always  been  acted  on.  In  1871  the  court  said,  through 
Chief  Justice  Chase :  "  There  is  no  supreme  court  of  the 
United  States  nor  is  there  any  district  court  of  the  United 
States,  in  the  sense  of  the  Constitution,  in  the  territorj'  of 
Utah.  The  judges  are  not  appointed  for  the  same  term, 
nor  is  the  jurisdiction  .  .  .  part  of  the  judicial  power  con- 
ferred by  the  Constitution  on  the  general  government.  The 
courts  are  the  legislative  courts  of  the  territory,  created  in 
virtue  of  the  clause  which  authorizes  Congress  to  make  all 
needful  rules  and  regulations  respecting  the  territory  be- 
longing to  the  United  States."  ^ 

But  now  observe,  if  the  restraints  of  this  part  of  the 
Constitution  do  not  operate  in  the  territories,  why  should 
those  of  the  rest  of  it  reach  them?  If  the  judicial  system 
of  the  United  States  was  meant  only  for  the  United  States 
in  the  narrower  sense,  as  including  the  States  themselves, 
the  conclusion  seems,  as  I  am  inclined  to  believe  it,  a  just 
one,  that  the  Constitution  generally  was  not  meant  for  the 
territories,  except  as  it  may  in  any  place  expressly  or  plainly 
indicate  otherwise ;  and  that  its  provisions  committing  the 
territories  to  that  full  control  of  Congress  which  is  expressly 
mentioned,  and  to  its  implied  authority  to  govern,  involved 
in  the  power  to  acquire,  carry  an  absolute  authority  over 
them,  except  as  there  may  be  any  plain  expression  of  re- 
straints.    Such  was  the   opinion   of   Chancellor   Kent  as 

'  Am.  Ins.  Co.  r.  Canter,  1   Peters.  511. 
2  Clinton  V.  Englebrecht.  l.*?  Wall.  434. 


OUR  NEW  POSSESSIONS  177 

expressed  in  his  Commentaries  in  1S26,  and  never  changed. 
He  said :  "  If  .  .  .  the  government  of  the  United  States 
should  carry  into  execution  the  project  of  colonizing  the 
great  valley  of  the  Columbia  or  Oregon  River  to  the  west 
of  the  Eocky  Mountains,  it  would  afford  a  subject  of  grave 
consideration  what  would  be  the  future  civil  and  political 
destiny  of  that  country.  It  would  be  a  long  time  before 
it  would  be  populous  enough  to  be  created  into  independent 
States ;  and  in  the  mean  time,  upon  the  doctrine  taught 
by  the  Acts  of  Congress  and  even  by  the  judicial  decisions 
of  the  Supreme  Court,  the  colonies  would  be  in  a  state  of 
the  most  complete  subordination,  and  as  dependent  upon 
the  will  of  Congress  as  the  people  of  this  country  would 
have  been  upon  the  king  and  Parliament  of  Great  Britain, 
if  they  could  have  sustained  their  claim  to  bind  us  in  all 
cases  whatsoever." 

Let  me  refer  to  a  valuable  paper  on  this  particular  ques- 
tion in  a  magazine  called  the  "  Review  of  Reviews,"  for 
January,  1899,  by  Professor  Judson  of  Chicago.  He  ex- 
amines the  subject  carefully  and  with  references  to  some 
of  the  decisions,  and  reaches  the  conclusion  that  only  in  an 
international  sense  can  it  be  said  that  the  territories  are  a 
part  of  the  United  States,  as  that  phrase  is  used  in  the 
Constitution.^ 

II.  So  far  I  have  pointed  out  two  things:  First,  that 
we  no  longer  have  before  us  the  question  of  whether  we 
will  take  on  extra-continental  colonies  or  not.  We  actually 
have  them  now.  Our  real  question  is  what  to  do  with  them. 
And,  second,  as  preliminary  to  the  question  what  we  shall 
do  with  them,  I  have  been  considering  what  is  the  compass 
of  our  power.  I  have  pointed  out  that  after  the  ratification 
of  the  treaty,  we  shall  still  have  absolute  power  to  determine 
what  the  political  relation  of  the  Spanish  islands  to  us 
shall  be,  and  so  the  scope  of  our  governmental  control  over 

'  See  also  the  very  valuable  investigation  of  the  text  of  the  Consti- 
tution, by  Professor  Langdell  [12  Harv.  Law  Rev.  365],  leading  up  to 
the  same  conclusion. 

12 


J  78  LEGAL  ESSAYS 

them;  and  that  if  they  should  be  annexed,  so  as  to  be 
identified,  in  status,  with  the  territories,  we  shall  still  have 
full  power  to  deal  with  them,  subject  only  to  any  appli- 
cable restraints  of  the  Constitution  of  the  United  States; 
so  that  we  may  govern  these  extra-continental  dependencies 
as  we  have  in  fact,  ever  since  the  beginning  of  our  nation, 
governed  our  continental  colonies,  namely,  the  territories 
and  the  District  of  Columbia.  And  I  have  shown  how  it 
is  that  we  have  acquired  and  governed  these,  namely,  in  a 
manner  which  nearly  corresponds  to  the  method  of  Eng- 
land in  governing  her  freest  colonies;  only  more  stringent 
and  less  free. 

I  may  add  that  the  restraints  of  the  Constitution  would 
probably  be  found  less  embarrassing  in  governing  a  bar- 
barous or  semi-barbarous  people  than  might  at  first  sight 
be  thought;  just  as  they  have  been  found  not  seriously  to 
interfere  with  the  carrying  on  of  war  with  rebellious  States. 
That  instrument  was  made,  and  is  to  be  read  and  applied, 
in  the  atmosphere  of  the  common  law  and  of  the  law  of 
nations;  and  with  a  constant  tacit  reference  to  that  accu- 
mulation of  principles  and  maxims  of  sound  reason  and 
good  sense  which  temper  all  applications  of  it  to  actual 
affairs.  When  our  own  people,  owing  allegiance,  will  not 
be  governed  as  they  should  be,  they  may  still  be  governed 
somehow;  and  under  the  Constitution  they  may  be  gov- 
erned as  it  is  necessary  to  govern  them,  according  to  the 
actual  circumstances  of  the  case.  They  cannot  throw  off 
the  authority  of  the  nation;  they  must  accept  it  in  such 
form  as  is  practicable  under  the  circumstances  that  they 
themselves  create.  Let  me  add  in  order  to  prevent  a  pos- 
sible misunderstanding,  that  in  matters  of  substance  the 
restraints  of  the  Constitution  will  not  often  be  felt  as 
restraints  in  the  government  of  colonies  by  a  civilized  nation 
in  modem  times.  Such  a  nation,  like  England,  is  likely  to 
restrain  itself  within  narrower  lines  than  the  Constitution 
requires,  for  mere  policy,  and  from  its  own  sense  of  hu- 
manity and  justice. 


OUR  NEW  POSSESSIONS  179 

And  now  let  me  very  briefly  and  very  summarily  speak 
of  our  policy  and  of  our  duty.    I  will  not  enlarge  here. 

1.  In  the  first  place,  we  must  face  and  take  up  the  new 
and  unavoidable  duties  of  the  new  colonial  administration, 
however  unwelcome  they  may  be,  handsomely  and  firmly. 
There  is  no  question  now  of  any  choice  as  to  whether  we 
will  have  a  colonial  policy. 

2.  The  case  of  Hawaii  should  await  the  settlement  of  the 
general  problems  now  coming  into  view,  arising  out  of 
these  new  dependencies.  The  case  of  all  the  islands  will  be 
in  many  respects  the  same.  They  should  all  be  dealt  with 
together. 

3.  We  should  ratify  the  treaty;  and  then  determine  the 
fate  of  the  Philippines  after  very  full  and  careful  con- 
sideration. The  treaty  simply  detaches  these  islands  from 
Spain  and  secures  for  us  the  opportunity  to  do  this.  As 
things  now  stand,  the  policy  of  throwing  them  back  upon 
Spain  or  upon  themselves,  merely  because  we  individually 
do  not  want  them,  and  because  it  is  easier  to  defeat  the 
treaty  than  it  is  to  accomplish  afterwards  a  particular  dis- 
position of  them  that  one  may  himself  prefer,  seems  to  me 
unworthy  of  the  nation  and  of  the  subject  in  hand.  It  is 
dealing  too  hastily  with  a  great  and  serious  problem;  and 
it  is  discrediting  our  own  capacity  to-  handle  it  with  wise 
deliberation. 

4.  Having  ratified  the  treaty,  let  us  be  in  no  hurry  to 
close  the  grave  questions  that  will  present  themselves  as  to 
the  permanent  status  of  the  islands.  These  should  all  con- 
tinue, for  the  present,  to  be  governed  under  executive  and 
military  control;  and  meantime  with  the  utmost  possible 
care  we  should  study  the  true  settlement  of  these  questions. 

5.  Let  us  beware,  at  every  step,  of  promising  to  the 
islands,  not  excepting  Hawaii,  any  place  in  the  Union. 
Here,  as  elsewhere,  we  shall  find  England's  sensible  policy 
our  best  guide.  We  cannot  imagine  Great  Britain's  letting 
in  her  colonies  to  share  the  responsibility  of  governing  the 
home  country  and  all  the  rest  of  the  empire.     In  France, 


180  LEGAL  ESSAYS 

indeed,  that  mistake  has  partly  been  committed;  but  we 
are  hearing  now  the  solemn  warnings  of  the  French  against 
such  a  policy.  Never  should  we  admit  any  extra-continental 
State  into  the  Union ;  it  is  an  intolerable  suggestion.  I 
am  glad  to  observe  that  it  is  proposed  in  Congress  to  insert 
in  the  statute  for  the  settlement  of  the  Hawaiian  govern- 
ment the  express  declaration  that  it  is  not  to  be  admitted 
into  the  Union.  The  same  thing  should  be  done  with  all 
the  other  islands.  The  remark  attributed  to  a  judge  of 
the  Supreme  Court  of  the  United  States  in  presiding,  lately, 
over  a  popular  meeting  in  Washington,  that  we  have  no 
power  to  hold  colonies  except  for  the  purpose  of  preparing 
them  to  come  in  as  States,  has  no  judicial  quality  whatever. 
It  is  simply,  as  I  have  already  said,  a  political  theory  enter- 
tained by  some  persons,  but  resting  upon  no  ground  of  con- 
stitutional law. 

6.  Furthermore,  considering  the  danger  which  attends 
a  close  division  of  parties,  and  our  unfortunate  experience 
of  recent  years  in  admitting  States  ill-prepared  to  become 
members  of  the  Union,  we  ought  to  guard  against  the  ex- 
cesses of  party  spirit  on  so  grave  a  subject,  by  amending 
the  Constitution  and  limiting  the  States  of  the  Union  to  the 
continent.  After  the  great  convulsion  of  thirty  odd  years 
ago  we  found  it  necessary  to  amend  the  Constitution  be- 
fore settling  down  again.  Equally  after  this  war,  attended 
by  such  momentous  results,  we  have  abundant  reason  to 
proceed  in  the  same  way.  Such  amendments  are  difficult, 
but  they  are  not  impossible;  nor  are  they  necessarily  so 
very  long  in  being  accomplished.  The  Twelfth  amendment 
was  in  force  in  about  nine  months  after  it  was  proposed. 

Guarded  by  such  an  amendment  it  appears  to  me  that 
we  might  enter  upon  the  new  and  inevitable  career  which 
this  Spanish  war  has  marked  out  for  us,  with  a  good  hope 
of  advancing  the  honor  and  prosperity  of  our  country  and 
the  welfare  of  mankind. 


INTEKNATIONAL   USAGES.  — A   STEP 
FORWARD 

[ITiis  essay  appeared  in  September,  1895,  in  the  University  Law 
Review  (edited  by  Austin  Abbott,  Dean  of  the  Law  School  of  the 
University  of  the  City  of  New  York,  and  published  by  Frederick 
M.  Crossett).] 

In"  an  impressive  passage  at  the  end  of  his  address/  last 
summer,  before  the  Harvard  Law  School  Association,  Sir 
Frederick  Pollock,  in  speaking  of  the  "  Vocation  of  the 
Common  Law,"  imagined  the  time  when  the  highest  courts 
of  Great  Britain  and  of  this  country  should  co-operate  in 
the  settlement  of  great  and  difficult  questions  of  common 
concern.  Alluding  to  the  practice,  on  the  part  of  the  House 
of  Lords,  of  consulting  the  English  judges,  he  suggests  a 
similar  reciprocal  consultation  between  the  House  of  Lords 
or  the  Privy  Council,  on  one  side,  and  the  Supreme  Court 
of  the  United  States,  on  the  other.  "  Such  a  proceeding," 
he  adds,  "  could  not,  in  any  event,  be  common.  It  might 
happen  twice  or  thrice  in  a  generation,  in  a  great  and 
dubious  case  touching  fundamental  principles,  like  that  of 
Dalton  V.  Angus.  .  .  .  Could  the  precedent  be  made  once 
or  twice  in  an  informal  and  semi-official  manner,  it  might 
safely  be  left  to  posterity  to  devise  the  means  of  turning  a 
laudable  occasional  usage  into  a  custom  clothed  with  ade- 
quate form.  As  for  the  difficulties,"  he  goes  on,  "  they  are 
of  the  kind  that  can  be  made  to  look  formidable  by  per- 
sons unwilling  to  move,  and  can  be  made  to  vanish  by  active 
good-will." 

This  is  a  dream,  he  says,  but  he  looks  to  see  it  come  true. 
If  one  ask  when,  —  his  answer  is,  "  I  cannot  tell.  .  .  . 
Dreams  are  not  versed  in  issuable  matter  and  have  no 

1  Law  Quar.  Rev.,  XI,  323  ;    Harv.  Grad.  Mag.  IV,  1. 


182  LEGAL  ESSAYS 

dates.  Only,  I  feel  that  this  one  looks  forward,  and  will 
be  seen  as  waking  light  some  day."  The  suggestion  is 
ventured,  then,  as  a  bit  of  poetry,  an  utterance  of  the  legal 
imagination.  Of  such  things  we  have  only  a  right  to  ask 
that  they  keep  within  the  legitimate  realms  of  the  lawyer's 
imagination.  Wordsworth  says  of  the  poet  that  "  he  will 
follow  wherever  he  can  find  an  atmosphere  of  sensation  in 
which  to  move  his  wings."  Those  are  his  limits ;  he  cannot 
pass  outside  of  that  region.  And  so  of  the  flight  of  our 
legal  poet;   it  must  keep  within  the  legal  sky. 

What  analogies  are  there,  then,  and  what  basis  in  exist- 
ing legal  facts  and  conceptions  to  bear  up  Sir  Frederick  in 
his  flight?  Is  the  legal  air  thick  enough  to  hold  him?  Is 
what  he  puts  forward  legally  possible,  conceivable,  capable 
of  being  hoped  for?  What  is  there  in  our  existing  pro- 
cedure which  may  be  availed  of  as  a  foundation  for  the 
purpose  which  is  suggested? 

I.  The  orator  mentioned,  as  was  just  said,  the  ancient 
practice  by  which  the  House  of  Lords  calls  for  legal 
opinions  from  the  judges  of  England.  For  his  purposes, 
it  was  a  just  and  fit  allusion ;  nor  was  it  quite  adequately 
met,  when  Mr.  Justice  Gray,  at  the  dinner,  after  the 
address,  recalled  the  fact  that  the  judges  of  the  Supreme 
Court  of  the  United  States  had  refused  to  answer  a  ques- 
tion put  to  them  by  President  Washington,  on  the  ground 
that  this  was  not  a  judicial  duty.  If  it  be  admitted,  as  it 
must  be,  that  the  giving  of  such  responses  is  not  the  exer- 
cise of  the  judicial  function,  that  they  do  not  bind  anyone 
as  authority,^  yet  it  is  also  true  that  they  have  been  and 
still  are  a  highly  valued  instrument  in  the  conduct  of  gov- 
ernment or  judicature,  both  in  England  and  this  country. 
To  say  that  a  court  is  not  obliged  to  answer,  and  cannot 
be  obliged  to  answer  by  the  action  of  the  other  departments, 
is  not  to  say  that  they  cannot  answer  if  they  see  fit. 

What  do  we  know  of  this  practice?     It  runs  far  back. 

•  See  the  citations  In  Tiiayer's  Cases  on  Constitutional  Law,  i.  156, 
175,  183  ;    also  ib.  177,  180,  181. 


INTERNATIONAL  USAGES  183 

We  find  the  judges  acting  as  assistants  to  the  Chancellor 
in  Edward  the  Third's  time,  and  the  practice  is  upheld 
against  remonstrances  as  being  an  established  one.^  They 
are  found  giving  answers  to  the  King  himself,  Eichard  II., 
half  a  century  later; 2  to  Richard  III.,  a  hundred  years 
later  than  that ;  ^  to  George  II.,  in  1760 ;  ^  and  often  mean- 
while. While  the  king  has  not  called  for  such  answers 
since  1760,  the  ancient  practice  as  regards  the  House  of 
Lords  continues  still.  We  see  it  in  the  famous  instance 
of  Thomas  Thorpe,  the  imprisoned  Speaker  of  the  House  of 
Commons,  in  1454,^  and  in  many  and  many  a  case  before 
and  since.  As  regards  the  king  the  judges  were  reckoned 
his  deputies  and  servants.  To  the  House  of  Lords  they 
have  always  been  counted  as  regular,  constitutional  assist- 
ants, and  still  they  are  summoned  by  writ  to  every  new 
parliament.  This  writ,  after  reciting  as  the  occasion  of 
the  summons  the  existence  of  "  certain  arduous  and  urgent 
affairs  concerning  us,  the  state  and  defence  of  our  said 
United  Kingdom  and  the  Church,"  requires  the  judges  to 
"  be  personally  present  with  us  and  with  the  rest  of  our 
Council  to  treat  and  give  your  advice  upon  the  affairs  afore- 
said." There  is  no  exception  here  as  to  the  subjects  which 
may  come  up ;  and  their  duties  are,  in  fact,  miscellaneous.^ 
They  have  been  the  Lords'  assistants  for  six  centuries.'^  It 
used  to  be  thought  the  duty  of  the  judges,  one  or  more,  to 
be  in  attendance  all  the  time ;  and  two  hundred  years  ago 
they  were  reprimanded  and  disciplined  for  failures  to  per- 
form this  duty,^  but  that  theory  has  been  abandoned.  In 
the  language  of  one  who  was  recently  of  their  number,  and 
the  language  of  whose  commission  has  just  been  quoted, 
"  The  judges  have,  I  believe,  a  right  to  sit  on  the  woolsack 

1  Y.  B.,  12  &  13  Edw.  III.,  Introduction,  ci-cv. 

2  2  St.  Realm,  102  (1387). 

3  Y.  B.,  2  Rich.  III.  9,  22. 

*  Sackvllle's  Case,  2  Eden,  371. 

=  Rot.  Pari.  V.  239,  b.,  Cotton's  Abridg.  651. 

*  Macqueen,  Practice  of  the  House  of  Lords.  47,  51,  52. 
'  2  Stubbs  Const.  Hist.  253  ;    3  ib.  393. 

*  Macqueen,  Practice  of  the  House  of  Lords,  37-40. 


184  LEGAL  ESSAYS 

at  any  time,  but,  as  there  is  a  standing  order  of  the  House 
that  they  are  not  to  speak  till  they  are  spoken  to,  they  do 
not  go  unless  required  to  give  their  legal  advice." 

It  is  sometimes  thought  that  the  function  of  the  judges 
is  limited  to  assisting  the  Lords  by  advice  in  litigated  cases. 
I  have  already  said  that  this  is  not  so.  In  the  Queen's 
Case  ^  the  Lords  were  listening  to  evidence  incidentally 
to  determining  a  legislative  question  merely,  viz.,  whether 
they  should  pass  a  bill  of  pains  and  penalties  against  Queen 
Caroline,  and  yet  the  judges  were  kept  in  steady  attendance 
to  answer  questions.  These  questions  did,  indeed,  relate 
to  the  practices  of  courts,  and  the  judges'  answers  have 
taken  their  place  in  our  books  as  if  they  were  judicial 
opinions,  although,  undoubtedly,  they  were  merely  learned 
advice.2  A  more  conspicuous  illustration  of  summoning 
the  judges  to  assist  in  a  non-judicial  proceeding  is  found 
in  M'Naghten's  Case,-^  where  the  Lords  had  no  question 
up,  either  judicial  or  legislative,  but  desired  to  know  how 
the  rule  of  law  stood  on  a  point  relating  to  criminal  liability 
in  case  of  insanity.  On  the  objection  being  made  that  there 
was  no  business  pending  before  the  Lords,  that  House  gave 
expression  to  the  unanimous  opinion  that  it  had  the  right, 
nevertheless,  to  call  on  the  judges  for  their  opinions. 

This  usage,  on  the  part  of  a  legislative  body  or  the  ex- 
ecutive, of  calling  on  the  judges  for  their  advice  as  to  ques- 
tions of  law,  crossed  the  water  to  our  side.  There  is  reason 
to  think  that  it  existed  here  in  the  Colonial  period.  The 
Massachusetts  Constitutional  Convention  in  February,  1780, 
called  in  the  judges  in  a  manner  which  suggests  no  thought 
of  its  being  a  strange  practice.  In  Rhode  Island,  in  1786, 
in  Trevett  v.  Weeden,  Howell,  J.,  acknowledges  that  the 
judges,  as  assistants  to  the  legislature,  are  "  ever  ready,  as 
constituting  the  legal  counsellors  of  the  State,  to  render 
every  kind  of  assistance  to  the  legislature  in  framing  new 
or  repealing  former  laws."     And  at  the  same  period  in 

1  2  Brod.  &  Bing.  284.  =  Best  Evid.  s.  474. 

3  10  Clark  &  Fin.  200. 


INTERNATIONAL   USAGES  185 

Pennsylvania  the  judges  are  shown  to  have  been  in  the 
habit  of  furnishing  such  assistance  to  the  executive.^  As 
a  fixed  part  of  our  constitutional  machinery,  it  exists  here 
to-day  in  seven  States.  It  was  first  introduced  in  Massa- 
chusetts in  1780,  and  from  that  State  spread  successively 
to  New  Hampshire  in  1784,  Maine  {continuing  there  when 
it  separated  from  Massachusetts),  in  1820,  Rhode  Island, 
in  1842,  Missouri,  in  1865  (abandoned  in  1875),  Florida, 
in  1868,  Colorado,  in  1886,  and  South  Dakota,  in  1889. 
In  all  these  States,  except  Missouri,  it  is  now  planted  in  the 
fundamental  instrument  of  government  in  forms  more  or 
less  like  that  of  the  Massachusetts  constitution  ,2  which 
reads  thus :  "  Each  branch  of  the  Legislature,  as  well  as  the 
Governor  and  Council  shall  have  authority  to  require  the 
opinions  of  the  justices  of  the  Supreme  Judicial  Court  upon 
important  questions  of  law,  and  upon  solemn  occasions." 

Since  these  opinions  are  advisory,  "  consultative,"  non- 
judicial utterances,  it  has  been  very  reasonably  held,  in 
some  quarters,  that  the.  judges  cannot,  in  the  absence  of  a 
constitutional  requirement,  be  required  by  the  other  depart- 
ments to  give  them.'*^  But  in  other  jurisdictions  they 
have,  in  point  of  fact,  been  given  when  not  required  by  the 
constitution,  —  sometimes  in  pursuance  of  a  legislative  pro- 
vision and  sometimes  without  it."*  It  seems  clear  that  the 
judges  may  answer,  if  they  choose  to.  The  precedents  re- 
ferred to  indicate  only  that  they  need  not  if  they  do  not 
choose;  and,  perhaps  also,  that  it  is  generally  inexpedient 
to  answer  when  not  required  by  the  constitution.  The 
refusal,  therefore,  referred  to  by  Mr.  Justice  Gray,  where 
Chief  Justice  Jay  and  his  associates  on  the  bench  of  the 
Supreme  Court  of  the  United  States  declined,  in  1793,  to 

1  For  the  authorities  on  this  and  other  points  relating  to  this  sub- 
ject see  Thayer's  Cases  on  Constitutional  Law,  uM  supra.  [See  also 
supra,  pp.  42-59.] 

2  Pt.  II,  c.  S,  s.  2. 

'  In  re  Senate's  Application,  10  Minn.  78 ;  Marshall's  "  Life  of 
GeorRe  Washington."  v.  441  (ed.  Phil.,  1807). 

*  In  re  Governor's  Power,  79  Ky.  621  ;  People  v.  Greene,  1  Denio, 
614.     For  other  instances  see  1  Thayer's  Const.  Cas.  183,  n. 


186  LEGAL   ESSAYS 

answer  the  questions  put  to  them  by  President  Washington 
need  present  no  serious  difficulty.  It  may  well  enough  be 
supposed  that  a  formal  request  for  assistance  from  the 
highest  legal  tribunal  in  England  would  receive  the  desired 
consideration  and  response  from  our  own  highest  national 
court,  although  they  would  not  be  acting  in  a  strictly 
judicial  character,  and  although  they  would  not  think  of 
departing  from  the  wise  course  of  abstaining  to  act  the 
part  of  legal  adviser  to  their  co-ordinate  departments  at 
home.  And  then,  of  course,  in  forecasting  the  fate  of  Sir 
Frederick's  dream,  it  is  conceivable  that  such  a  duty  might 
be  imposed  on  the  judges  by  an  amendment  to  the  National 
Constitution. 

Of  course,  the  only  tribunal  which  our  Supreme  Court 
could  properly  address  would  be  the  House  of  Lords  itself, 
and  possibly  the  Judicial  Committee  of  the  Privy  Council 
—  not  the  judges.  Whether  the  Lords  should  call  on  the 
judges  would  be  a  question  for  them.  But  the  House  of 
Lords  and  the  Privy  Council  alone  could  correspond  in 
rank  to  our  own  Supreme  Court. 

The  questions  that  are  answered  by  the  judges  in  this 
country  cover  a  very  wide  range  of  subjects,  including  the 
respective  privileges  of  the  legislative  chambers,  and  the  in- 
quiry which  among  competing  claimants  constitutes  the  true 
legislature.^ 

So  far,  the  existing  usages  which  Ave  have  been  consider- 
ing are  limited  within  the  orbit  of  a  single  political  system. 
And  the  question  is  whether  this  procedure  may  be  ex- 
tended, and  may  come  to  have  an  international  application. 
It  would  seem  not  impossible,  when  once  the  need  of  it  is 
deeply  felt. 

'  An  enumeration  of  these  is  found  in  a  valuable  note  to  Mr.  H.  A. 
Dubuque's  "  Duty  of  .ludRes  as  Constitutional  Advisers,"  24  Ara.  Law 
Rev.  369,  378,  n.  For  the  formidable  list  of  twenty-nine  questions,  relat- 
ing to  points  in  maritime  and  international  law  and  our  treaty  relations 
with  France,  which  President  Washington  sent  in  to  the  Judges  of  the 
Supreme  Court  in  July,  1793,  see  Sparks's  "  Life  of  Washington,"  x. 
542.  For  a  letter  of  Washington  to  the  judges  on  this  subject  dated 
July,  1793,  see  i6.  359. 


.    INTERNATIONAL  USAGES  187 

II.  But  what  have  we  in  our  existing  international 
usages  and  procedure,  which  may  furnish  any  analogy  for 
such  an  extension  ? 

The  whole  long  development  of  international  intercourse 
might  be  appealed  to  as  furnishing  such  analogies.  Let  us 
mention  only  one  thing,  the  use  of  what  are  called  letters  \ 
rogatory  and  letters  of  request,  when  there  is  occasion  to 
obtain  evidence  in  a  foreign  country.  Greenleaf  (Ev.  i, 
s.  320)  tells  us  of  letters  rogatory,  and  quotes  from  one 
of  our  Federal  reports  ^  the  form  of  them  as  follows : 

"  The  President  of  the  United  States,  to  any  Judge  or  Tribunal, 
having  jurisdiction  of  civil  causes  at  Havana, 

"  GREETING :  Whereas  a  certain  suit  is  pending  before  us  in 
which  John  D.  Nelson,  Henry  Abbott  and  Joseph  E.  Tatem  are 
the  claimants  of  the  schooner  Perseverance  and  cargo,  and  the 
United  States  of  America  are  the  defendants;  and  it  has  been 
suggested  to  us  that  there  are  witnesses  residing  within  your 
jurisdiction,  without  whose  testimony  justice  cannot  completely 
be  done  between  the  said  parties.  We,  therefore,  request  you,  that, 
in  furtlierance  of  justice,  you  will,  by  the  proper  and  usual 
process  of  your  court,  cause  such  witness  or  witnesses,  as  shall  be 
named  or  pointed  out  to  you  by  the  said  parties,  or  either  of  them, 
to  appear  before  you  or  some  competent  person,  by  you  for  that 
purpose  to  be  appointed  and  authorized,  at  a  precise  time  and 
place  by  you  to  be  fixed,  and  there  to  answer  on  their  oaths  and 
affirmations,  to  the  several  interrogatories  hereunto  annexed;  and 
that  you  Avill  cause  their  depositions  to  be  committed  to  writing, 
and  returned  to  us  under  cover,  duly  closed  and  sealed  up  together 
with  these  presents.  And  we  shall  be  ready  and  willing  to  do  the 
same  for  you  in  a  similar  case  when  required.    Witness,  etc." 

These  are  what  are  called  in  our  old  books,  as  well  as  in 
modern  English  practice,^  "  letters  of  request."  They  are 
found  in  the  Register.^  The  king  asks  some  foreign  prince 
to  aid  an  injured  party  to  obtain  justice,  with  a  promise  to 

1  Nelson  v.  U.  S.,  Peters  C.  C.  R.  235. 

2  Annual  Practice,  1895,  p.  733. 

'  P.  129  (ed.  1553).  See  to  the  same  effect  many  of  Milton's  letters 
to  foreign  governments,  when  acting  as  Latin  Secretary  to  the  Council 
of  State  during  the  Commonwealth. 


188  LEGAL   ESSAYS 

reciprocate  the  favor,  adding,  perhaps,  a  suggestion  of  the 
king's  being  obliged  to  provide  some  other  remedy  if  this 
be  not  done. 

Wier's  Case,  on  habeas  corpus,  in  1607,^  is  that  of  a 
Frieslander  recovering  in  Friesland  against  an  Englishman. 
The  Englishman  came  home  without  having  satisfied  the 
judgment,  whereupon  le  Governor  la  sent  letters  missive 
to  England,  omnes  magistratus  infra  regnum  Anglian  rogans 
de  faire  execution  del  dit  judgment.  It  was  held,  in  re- 
manding the  Englishman,  that  the  Admiralty  might  exe- 
cute this  judgment  by  imprisonment  and  that  he  should 
not  be  released  by  a  common  law  court;  that  the  law  of 
nations  required  one  nation  to  aid  the  justice  of  another, 
and  execute  the  judgments  of  another,  and  that  the  Ad- 
miralty judge  was  the  proper  one  for  this  purpose. 

In  another  very  early  case,  at  the  end  of  the  thirteenth 
century,  in  an  action  of  trespass  by  a  Dutch  merchant  re- 
specting a  ship  from  Holland  laden  with  merchandise,  it 
did  not  appear  what  was  aboard  when  the  vessel  left  Hol- 
land; whereupon  a  commission  was  sent  to  the  ruler  of 
Holland  (comiti  Hollandioi),  to  ascertain  per  probes  et 
Icgales  homines  et  mercatores  terre  sue,  what  goods  were 
aboard  when  the  vessel  put  to  sea.  This  old  case  is  in- 
teresting enough  to  justify  inserting  in  a  note  the  sub- 
stance of  the  record  as  it  is  preserved  in  the  Parliamentary 
Rolls.2     The  case  ends  the  same  year  by  the  appearance  in 

1  1  Rolle's  Abr.  530 :    s.  c.  2  D'Anvers  Abr.  265. 

-  Rot.  Pari.  1,  137  a  (A.D.  1295,  23  Edw.  I.),  ITuj?o  Mulard,  merca- 
tor  de  Holland,  alias  coram  Ipso  Domino  Rege,  qriestus  fuit  de  Walter© 
Hobbe  de  hoc  quod  prefatus  Walterus  infra  rnensam  post  bellum  in  marl 
Inter  Anglicos  et  Normannos  habltum,  vi  cepit  ab  eo  quandam  navem 
suam,  diversis  marcandlsis  carcatam,  etc.  Walter  pleaded  the  general 
issue,  and  a  Gloucester  jury  was  summoned.  But  Walter,  on  one  ground 
after  another,  vexatiously  delayed  matters.  The  record,  after  reciting 
that  the  king  understood  this  state  of  things  and  that  the  plaintiff  was 
greatly  damaged  by  \f,  goes  on  thus  :  Et  si  homines  de  Holland'  et 
Brabantia  hiis  diebus  de  dampnis  et  injur'  sibi  factis  per  homines  de 
regno  isto  sic,  sine  remedio,  per  dilationes  and  procurationes  adversari- 
orum  suorum  factas  sine  remedio  recederent,  de  facili  posset  regno 
majus  periculum  Iminere  ratione  guerre  mote.  And  since  Walter  admits 
that  he  had  the  ship  itself  and  fails  to  show  how  he  came  by  it,  and 
since  it  is  not  likely  that  a  foreign  merchant  came  here  without  any- 


INTERNATIONAL  USAGES  189 

court  of  one  Christian,  a  Dutch  Knight,  who  produces  a 
letter  of  attorney  from  Hugh  and  in  his  name  personally 
acknowledges  satisfaction  of  his  claim;  and  the  defendant 
is  then  discharged.  This  is  cited  by  Greenleaf  (Ev.  i,  s. 
320,  n.)  as  an  early  instance  of  letters  rogatory. 

Such  letters,  as  was  said  before,  are  in  use  in  our  own 
time.  Obviously  this  or  some  like  process,  is  necessary  in 
regions  where  an  oath  is  not  allowed  to  be  administered  by 
anyone  but  a  magistrate  of  the  countr3^l  "  In  certain  for- 
eign countries,"  says  a  writer  in  the  "  Solicitor's  Journal '"' 
in  1891,2  notably  Germany,  only  an  officer  of  the  foreign 
court  is  entitled  to  administer  an  oath.  The  appointment 
of  commissioners  or  of  a  special  examiner  to  take  evidence 
in  such  countries  is  both  useless  and  dangerous,  for  the 
Icesa  majestas  of  a  foreign  State  is  apt  to  be  resentful.  To 
meet  this  difficulty  order  37,  rule  6a,  provides  that  "if  in 
any  case  the  court  or  a  judge  shall  so  order,  there  shall  be 
issued  a  request  to  examine  witnesses  in  lieu, of  a  commis- 
sion." ^  In  the  case  in  Peters,  from  which  Greenleaf  quotes 
the  form  of  letters  rogatory  Spanish  Law  had  made  them 
necessary. 

Of  course,  all  this  falls  short  of  any  direct  precedent  for 
a  bench  of  judges  in  one  country  asking  the  aid  of  another 
in  a  foreign  country,  in  determining  questions  of  law.  But 
is  the  difference  other  than  a  superficial  one?    We  do  have 

thing  at  all  in  his  ship,  it  is  adjudged  that  Walter  be  Imprisoned  till  he 
satisfies  the  plaintiff ;  and  further,  as  regards  the  amount  which  is 
chargeable,  "  Quia  dubitatur  que  bona  fuerunt  in  nave  predicta  Hugonis 
quando  de  partlbus  Holland'  versus  regnum  Istud  iter  suum  arripuit, 
mandatum  est  Comitl  Holand',  quod  per  probos  et  legales  homines  et 
mercatores  terre  sue  ubi  predictus  Hugo  in  marlse  posuit,  inquirat  dili- 
genter  que  mercimonia  et  bona  ipsius  Hugonis  in  nave  predicta,  carcata 
fuerunt,  quando  iter  suum  versus  regnum  istud  arripuit,  et  Inquisitionem 
aperte  et  fldeliter  factam  remandet  Domino  Regi,  etc.  And  Walter  was 
allowed  to  send  over  anyone  whom  he  wished  to  represent  him  at  the 
taking  of  this  Inquisition. 

1  Froude  v.  Proude,  3  N.  Y.  Supreme  Ct.  Rep.  (Thompson  &  Cook> 
79  ;  1  Greenl.  Ev.  s.  320 ;  Annual  Practice  1895,  p.  733  ;  35  Sol.  Journ. 
790. 

-  Ubi  supra. 

'  It  is  added  in  a  note :  "  This  rule  was  made  on  October  1,  1884. 
The  notes  on  letters  of  request,  in  the  Annual  Practice  for  1891,  p.  G48, 
are  exceedingly  good." 


190  LEGAL  ESSAYS 

the  general  situation  of  an  appeal  by  the  judiciary  of  one 
country,  to  the  judiciary  of  another,  for  aid  in  the  work  of 
administering  justice.  And  the  general  maxim  is  funda- 
mental in  international  law  that  the  justice  of  one  nation 
should  aid  that  of  another;  or,  as  Rolle's  Abridgment  has 
it  in  Weir's  Case,  car  ceo  est  per  la  ley  de  Nations  que  le 
Justice  dun  Nation  serra  aidant  al  Justice  d'auter  Nation. 

If  this  new  suggestion  should  seem  to  any  one  to  have  a 
certain  transcendental  air,  as  if  imputing  to  judges  at  the 
common  law  an  attitude  and  an  aim  in  deciding  cases,  not 
really  belonging  to  them,  perhaps  he  need  not  be  frightened 
at  that.  We  are  talking  of  what  seems  desirable,  and  what 
after  a  few  steps  more  in  civilization  will  perhaps  seem 
less  strange.  Sir  Frederick  himself  seems  to  refer  us  to 
the  coming  on  of  a  distant  time,  a  time  "  when  the  Feder- 
ated navies  of  the  English-speaking  nations  keep  the  peace 
of  the  ocean  under  the  Northern  lights  and  under  the  South- 
ern cross,  from  Vancouver  to  Sydney  and  from  the  Channel 
to  the  Gulf  of  Mexico ;  when  an  indestructible  union  of 
even  wider  grasp  and  higher  potency  than  the  federal  bond 
of  these  states  has  knit  our  descendants  into  an  invincible 
and  indestructible  concord."  In  saying  this  he  is  thinking 
probably  of  a  perfected  form  of  the  sort  of  international 
conferences  which  he  suggests.  As  to  the  informal  begin- 
nings of  such  an  interchange  of  judicial  counsel,  they  might 
conceivably  enough  come  about  at  any  time,  —  as  the 
speaker  intimated,  —  needing  only  good-will  and  the  per- 
ception of  some  common  advantage  to  be  gained  by  it. 
They  might  take  place  to-morrow.  Whether  this  would  ever 
ripen  into  a  settled  practice  of  international  communication 
is  a  subject  of  hope  rather  than  conviction.  We  may  well 
believe  that  such  a  course  of  informal  conference  would  be 
found  to  produce  good  results,  and  that  it  might  develop 
into  something  solid  and  fixed,  of  the  happiest  augury. 


DICEY'S   LAW   OF   THE   ENGLISH 
CONSTITUTION ' 

[The  following  article  appeared  as  a  book  review  in  two  issues  of 
the  New  York  "Nation"  (December  24  and  31,  1885),  to  which 
paper  Professor  Thayer  contributed  many  notices  of  law  books. 
While  the  purpose  of  these  notices  was  in  its  nature  temporary 
rather  than  permanent,  it  has  seemed  desirable  to  preserve  this 
one  for  its  own  sake  not  less  than  for  the  high  character  of  the 
book  which  was  its  subject.  Professor  Thayer  had  a  warm  admira- 
tion for  the  author,  and  no  comments  on  the  Preliminary  Treatise 
on  Evidence  gratified  him  more  than  Professor  Dicey's.  ( 13  Harv 
Law  Rev.  430,  431.)] 

I.  When  one  scrutinizes  the  English  Constitution,  it  is 
like  looking  at  the  nests  of  birds  or  at  the  curious  and  in- 
tricate work  of  beavers  and  insects;  its  strange  contrivances 
seem  not  sq  much  the  ordered  and  foreseen  result  of  human 
wisdom  as  a  marvellous  outcome  of  instinct,  of  a  singular 
political  sense  and  apprehension,  feeling  its  sure  way  for 
centuries,  amid  all  sorts  of  obstacles,  through  and  around 
and  over  them,  with  the  busy  persistence  of  a  tribe  of  ants. 
England,  in  emerging  from  the  Middle  Ages,  has  brought 
along  its  old  forms  and  institutions  —  king  and  lords  and 
all  the  phraseology  of  feudal  subjection  —  but  it  has  har- 
nessed all  these  stately  mediaeval  appearances  into  the  ser- 
vice of  freedom.  Through  the  extraordinary  energy  of  the 
English  political  genius,  the  old  institutions  have  grown 
elastic  and  significant  of  new  thought.  "  I,  the  writer," 
says  the  author  of  the  Ottimo  Commento,  "heard  Dante 
say  that  never  a  rhyme  had  led  him  to  say  other  than  he 
would,  but  that  many  a  time  and  oft  he  had  made  words 
say  in  his  rhymes  what  they  were  not  wont  to  express  for 
other  poets."    In  like  manner  the  English  have  forced  their 

^  "  Lectures  Introductory  to  the  Study  of  the  Law  of  the  Constitu- 
tion."   By  A.  V.  Dicey.    Macmlllan  &  Co.    1885. 


192  LEGAL  ESSAYS 

familiar  institutions  to  express  their  highest  political  con- 
ceptions. Never  an  institution  has  led  them  to  say  other 
than  they  would ;  and,  indeed,  they  have  said  through  these 
institutions  things  that  other  nations  have  not  known  how 
to  express.  The  other  day  a  writer  in  the  "  Spectator  "  pro- 
posed as  an  amendment  to  a  scheme  for  the  reform  of  the 
House  of  Lords  that,  instead  of  having,  as  had  been  sug- 
gested, a  hundred  working  peers,  chosen  by  the  Crown  from 
among  the  Lords  at  the  beginning  of  each  session,  the 
choice  should  be  made  by  ballot  by  the  Commons.  The 
"  Spectator,"  in  a  footnote  to  the  communication,  remarked : 
"  What  is  the  difference  ?  The  Crown  is  only  another  name 
for  a  majority  in  the  House  of  Commons.'"'  ^  That  is  sub- 
stantially true :  but  what  a  remarkable  statement  it  is ! 
How  has  this  come  about? 

"  The  leaders  of  the  English  people,"  says  Professor  Dicey,  "  in 
their  contests  with  royal  power  never  attempted,  except  in  periods 
of  revolutionary  violence,  to  destroy  or  dissipate  the  authority 
of  the  Crown  as  head  of  the  State.  Their  policy,  continued  through 
centuries,  vi'as  to  leave  the  power  of  the  King  untouched,  but  to 
bind  down  the  action  of  the  Crown  to  recognized  modes  of  procedure 
which,  if  observed,  would  secure  first  the  supremacy  of  the  law, 
and  ultimately  the  sovereignty  of  the  nation.  The  King  was 
acknowledged  to  be  supreme  judge,  but  it  was  early  established 
that  he  could  act  judicially  only  in  and  through  his  courts ; 
the  King  was  recognized  as  the  only  legislator,  but  he  could  enact 
no  valid  law  except  as  King  in  Parliament;  the  King  held  in  his 
hands  all  the  prerogatives  of  the  executive  government;  but,  as 
was  after  long  struggles  determined,  he  could  legally  exercise  these 
prerogatives  only  through  ministers  who  were  members  of  his 
council,  and  incurred  responsibility  for  his  acts.  Thus  the 
personal  will  of  the  King  was  gradually  identified  with  and  trans- 
formed into  the  lawful  and  legally  expressed  will  of  the  Crown." 

So  that  to-day : 

"  The  prerogatives  of  the  Crown  have  become  the  privileges  of 
the  people,  and  any  one  who  wants  to  see  how  widely  these  priv- 

'  "  *  The  Crown  !  It  is  the  House  of  Commons ! '  said  an  English 
statesman  in  1858."     Dillon,  Mnnic.  Corp.  (3d  ed.),  12,  n. 


THE  ENGLISH  CONSTITUTION  193 

ileges  may  conceivably  be  stretched  as  the  House  of  Commons 
becomes  more  and  more  the  direct  representative  of  the  true 
sovereign,  should  weigh  well  the  words  in  which  Bagehot  describes 
the  powers  which  can  still  legally  be  exercised  by  the  Crown  with- 
out consulting  Parliament;  and  remember  that  these  powers  can 
now  be  exercised  by  a  Cabinet  who  are  really  servants,  not  of  the 
Crown,  but  of  a  representative  chamber  which,  in  its  turn,  obeys 
the  behests  of  the  electors." 

We  have  been  quoting  Professor  Dicey's  "  Law  of  the 
Constitution,"  a  new  and  first-rate  addition  to  the  literature 
of  this  subject.  There  is  nothing,  so  far  as  we  know,  which 
answers  so  neatly,  so  briefly,  and  with  such  fit  and  accurate 
discriminations  the  sort  of  questions  which  one  asks  him- 
self at  the  present  day  about  the  English  Constitution. 
Historical  matter  we  have  had  before,  and  of  the  best ;  Pro- 
fessor Dicey  does  not  go  much  into  that.  General  exposi- 
tion, after  the  methods  of  the  essayist  and  the  political 
philosopher,  we  have  had,  and  that  also  very  good.  But 
Dicey,  in  discharging  his  new  duties  at  Oxford,  has  aimed 
at  a  different  thing  and  has  accomplished  it  with  great 
success.  He  deals  with  the  law  of  the  Constitution  and 
not  primarily  with  its  conventions,  or  merely  political  and 
moral  arrangements.  And  in  rejoicing  over  some  recent 
judicial  expositions  of  this  law  of  the  Constitution,  he 
pays  a  cheerful  page  of  tribute  in  an  unexpected  quarter 
which  we  quote  in  passing : 

"  Teachers  of  law  enjoy  at  this  moment  the  aid  of  one  invaluable 
though  unrecognized  coadjutor.  Mr.  Charles  Bradlaugh  is  doing 
more  for  the  law  outside  the  House  of  Commons  than  he  could 
by  any  possibility  do  for  it  when  (if  ever)  he  is  admitted  to 
a  quiet  seat  in  the  House.  He  has  rediscovered  the  law  of  main- 
tenance; he  has  elucidated  the  law  of  blasphemy;  he  has  ex- 
plained the  character  of  a  penal  action;  he  has  enabled  us  to  define 
with  precision  the  relation  between  the  House  of  Commons  and 
the  courts  of  the  land;  he  has  gone  far  to  make  intelligible  the 
legal  character  and  solemnity  of  an  oath.  Should  he  live  and 
flourish,  or  perhaps  one  should  rather  say,  should  he  live  and 
not  flourish,  there  is  no  saying  what  secrets  of  the  Constitution 

13 


194  LEGAL   ESSAYS 

he  may  not  unveil  to  the  public  gaze.  His  failure  or  success  is 
from  this  point  of  view  at  least  equally  advantageous  to  the  nation, 
and  will,  one  may  reflect  with  satisfaction,  equally  ensure  to  him 
his  appropriate  reward.  He  will  obtain,  or  rather  he  has  obtained, 
legal  immortality.  While  Calvin's  Case,  while  Bates's  Case,  while 
the  Case  of  Ship-money,  while  the  Banker's  Case  are  held  in  re- 
membrance, Mr.  Bradlaugh  will  survive  in  Bradlaugh  v.  Gossett 
side  by  side  with  Stockdale  v.  Hansard." 

Let  us  give  some  account  of  the  contents  of  Professor 
Dicey's  book,  before  proceeding  to  comment  upon  certain 
parts  of  it  which  relate  to  this  country.  Two  great  prin- 
ciples, as  he  puts  it,  have  been  worked  out  all  through 
English  history.  "  The  first  is  the  omnipotence  or  un- 
disputed supremacy  throughout  the  whole  country  of  the 
central  Government,"  "the  sovereignty  of  Parliament, 
which  means  in  effect  the  gradual  transfer  of  power  from 
the  Crown  to  a  body  which  has  come  more  and  more  to 
represent  the  nation."  "  The  second,  .  .  .  which  is  very 
closely  connected  with  the  first,  is  the  rule  or  supremacy 
of  law."  The  first  of  these  principles  he  illustrates  in  an 
instructive  manner  by  a  consideration  of  the  non-sovereign 
legislatures  of  the  colonies,  and  of  like  bodies  on  the  con- 
tinent of  Europe  and  here.  Of  the  rule  (i.  e.,  the  suprem- 
acy) of  law  it  is  said  that  it  "  is  as  marked  a  feature  of  the 
United  States  as  of  England " ;  and  again  that  it  "  is  a 
conception  which  in  the  United  States  .  .  .  has  received  a 
development  beyond  that  which  it  has  reached  in  England ; 
but  it  is  an  idea  not  so  much  unknown  to  as  deliberately 
rejected  by  the  constitution-makers  of  France  and  of  other 
Continental  countries  which  have  followed  French  guid- 
ance,"   It  is  described  thus : 

"...  That  '  rule  of  law,'  then,  which  forms  a  fundamental 
principle  of  the  Constitution,  has  three  meanings,  or  may  be  re- 
garded from  three  different  points  of  view.  It  means,  in  the  first 
place,  the  absolute  supremacy  or  predominance  of  regular  law  as 
opposed  to  the  influence  of  arbitrary  power,  and  excludes  the 
existence   of   arbitrariness,   of   prerogative,   or  even   of   wide   dis- 


THE   ENGLISH  CONSTITUTION  195 

cretionary  authority  on  the  part  of  the  Government.  Englishmen 
are  ruled  by  the  law  and  by  the  law  alone;  a  man  may  with  us 
be  punished  for  a  breach  of  law,  but  he  can  be  punished  for  nothing 
else.  It  means,  again,  equality  before  the  law,  or  the  equal  sub- 
jection of  all  classes  to  the  ordinary  law  of  the  land  administered 
by  the  ordinary  law  courts.  The  '  rule  of  law '  in  this  sense 
excludes  the  idea  of  any  exemption  of  officials  or  others  from  the 
duty  of  obedience  to  the  law  which  governs  other  citizens,  or  from 
the  jurisdiction  of  the  ordinary  tribunals ;  there  can  be  with  us 
nothing  really  corresponding  to  the  '  administrative  tribunals ' 
(tribunaux  administratifs)  of  France.  The  notion  which  lies  at 
the  bottom  of  the  '  administrative  law  '  known  to  foreign  countries, 
that  aflFairs  or  disputes  in  which  the  Government  or  its  servants 
are  concerned  are  beyond  the  sphere  of  the  civil  courts,  and  must 
be  dealt  with  by  special  and  more  or  less  official  bodies  ( tribunaux 
administratifs) ,  is  utterly  unknown  to  the  law  of  England,  and. 
indeed,  is  fundamentally  inconsistent  with  our  traditions  and 
customs.  Tlie  '  rule  of  law,'  lastly,  may  be  used  as  a  formula  for 
expressing  the  fact  that  with  us  the  law  of  the  Constitution,  the 
rules  which  in  foreign  countries  naturally  form  part  of  a  consti- 
tutional code,  are  not  the  source,  but  the  consequence  of  the  rights 
of  individuals,  as  defined  and  enforced  by  the  courts  ;  that,  in  short, 
the  principles  of  private  law  have  with  us  been,  by  the  action  of 
the  courts  and  Parliament,  so  extended  as  to  determine  the  posi- 
tion of  the  Crown  and  of  its  servants.  Thus  the  Constitution  is 
the  result  of  the  ordinary  law  of  the  land." 

Professor  Dicey's  principal  consideration  of  the  rule 
of  law  is  devoted  to  showing  the  application  of  it  —  "  the 
manner  in  which  the  law  of  England  deals  with  .  .  .  the 
right  to  personal  freedom,  the  right  to  (so-called)  freedom 
of  discussion,  the  right  of  public  meeting,  the  use  of  martial 
law,  the  rights  and  duties  of  the  army,  the  collection  and 
expenditure  of  the  public  revenue,  and  the  responsibility 
of  Ministers."  This  part  of  the  book  is  full  of  interest, 
but  we  cannot  dwell  upon  it,  further  than  to  remark  the 
curious  fact  that  English  law  appears  to  have  furnished  no 
definite  answer  as  yet  to  some  pretty  obvious  questions. 
It  subjects  a  soldier,  or  rather  it  leaves  him  subject,  to  the 
special  rigors  of  military  law;   he  may  be  shot  if  he  does 


196  LEGAL   ESSAYS 

not  obey  the  order  of  his  officer  to  fire  on  a  mob.  On  the 
other  hand,  it  also  subjects  him  to  the  ordinary  law  of  the 
land;  if  he  does  fire  on  the  mob  when  ordered,  he  may  be 
hanged.  "  What,"  asks  our  author,  "  is,  from  a  legal  point 
of  view,  the  duty  of  the  soldiers  ?  The  matter  is  one  which 
has  never  been  absolutely  decided."  But  a  test  is  cited  from 
Mr.  Justice  Stephen,  which,  as  Dicey  guardedly  remarks, 
"  is,  it  may  be  fairly  assumed,  as  nearly  correct  a  reply 
as  the  state  of  the  authorities  makes  it  possible  to  provide  " 
—  the  test,  namely,  of  whether  the  soldiers  "  might  fairly 
suppose  their  superior  officer  to  have  good  reasons  "  for  issu- 
ing the  order. 

The  last  of  the  eight  lectures  which  make  up  this  volume 
discusses  "  the  connection  between  the  law  of  the  Constitu- 
tion and  the  conventions  of  the  Constitution."  The  real 
sanction  of  these  conventions,  which  are  happily  described 
as  "  the  constitutional  morality  of  the  day,"  is  found  to 
lie,  after  all,  in  the  force  of  law,  in  "  the  fact  that  the 
breach  of  these  principles  and  of  these  conventions  will 
almost  immediately  bring  the  offender  into  conflict  with 
the  law  of  the  land."  If  Parliament  were  not  assembled 
in  any  given  year,  the  Mutiny  Act  would  expire,  and  with  it 
"all  means  of  controlling  the  army  without  a  breach  of 
law";  large  parts  of  the  revenue,  also,  would  cease  to 
come  in.  If  the  Ministry  should  refuse  to  resign  or  to 
dissolve  Parliament  after  it  had  lost  the  confidence  of  that 
body,  it  would  soon  be  imperilled  by  a  refusal  to  pass  the 
Mutiny  Act  or  the  Appropriation  Act.  "  The  conventions 
of  the  Constitution  are  not  law,  but  in  so  far  as  they  really 
possess  binding  force  they  derive  their  sanction  from  the 
fact  that  whoever  breaks  them  must  finally  break  the  law 
and  incur  the  penalties  of  a  law-breaker."  "  The  general 
rule  that  the  House  of  Lords  must  in  matters  of  legisla- 
tion ultimately  give  way  to  the  House  of  Commons,  is  one 
of  the  best  established  maxims  of  modern  constitutional 
ethics.  .  .  .  On  any  matter  upon  which  the  electors  are 
firmly  resolved,  a  Premier,  who  is  in  effect  the  representa- 


THE   ENGLISH  CONSTITUTION  197 

tive  of  the  House  of  Commons,  has  the  means  of  coercion 
—  namely,  by  the  creation  of  peers."  The  doctrine  here 
given  appears  to  be  in  substance  this :  that  the  conven- 
tions of  the  Constitution  are  heeded  because  there  are  legal 
means,  although  indirect  means,  of  enforcing  them.  It 
is  difficult  to  see  that  the  refractory  Lords  would  ever  incur 
the  penalty  of  being  law-breakers  by  continuing  to  be 
refractory. 

So  brief  a  summary  as  is  here  made  of  this  very  instruc- 
tive volume  must  needs  do  it  injustice ;  but  Professor  Dicey 
is  already  well  known  as  a  legal  writer  of  a  very  high  class, 
and  lawyers  will  easily  anticipate  the  insight,  the  clear  and 
precise  handling  of  the  subject,  the  lucid  statement,  the 
wit,  and  the  quite  perfect  legal  style  that  mark  these  lec- 
tures. To  students  who  are  familiar  only  with  our  consti- 
tutional law,  that  which  is  here  called  "  the  law  of  the 
Constitution,"  as  indeed  the  whole  English  "  Constitution 
itself,"  will  very  likely  seem  but  an  emasculated  sort  of 
thing  —  since  all  is,  at  best,  but  mere  statute  or  common 
law,  subject  to  repeal  by  ordinary  legislation.  The  phrase 
itself  will  seem  to  many  an  odd  one;  but  it  is  not  unknown 
in  English  courts;  e.  g.,  in  the  Admiralty  Court  a  few 
years  ago  Sir  Eobert  Phillimore  declared  a  certain  treaty 
made  by  "  the  Crown  "  to  be  invalid  as  being  "  contrary 
to  the  laws  of  the  Constitution."  ^  But  although  the  con- 
ceptions of  constitutional  law  in  this  book  are  in  some  re- 
spects radically  different  from  ours,  there  C(5uld  hardly  be 
a  better  introduction  to  the  study  of  our  own  law  than  it 
offers;  its  constant  reference  to  our  methods  and  to  those 
of  France,  Belgium,  and  Switzerland,  bring  out  the  signifi- 
cance and  flavor  of  much  in  all  those  systems  which  would 
otherwise  be  only  half  understood  or  but  feebly  grasped. 

II.  For  American  readers  the  fourth  lecture  will  prob- 
ably have  the  greatest  interest;  it  is  this  which  deals  with 
"  Parliamentary  Sovereignty  and  Federalism,"  illustrating 

>   [The  Parlement  Beige,  L.  R.  4  P.  D.  129.] 


198  LEGAL   ESSAYS 

the  latter  mainly  by  the  case  of  our  general  Government. 
The  author  shows  in  the  main  a  strikingly  good  understand- 
ing of  our  system,  and  he  points  out  with  keen  perception 
certain  characteristics  of  federal  government  which  we  are 
apt  to  pass  by.  And  yet,  from  an  American  point  of  view, 
this  chapter  has  the  defect  of  appearing  to  find  in  the 
necessities  of  a  federal  system  the  cause  of  much  which 
really  existed  in  our  States  before  the  federal  government 
had  an  existence.  Historically,  it  seems  to  be  true  that 
the  doctrine  of  "  the  supremacy  of  the  Constitution "  — 
i.  c,  its  supremacy  as  law  and  all  that  this  necessarily  in- 
volves—  had  been  bred  in  the  bone  on  this  side  of  the 
water.  Eelatively  to  our  colonies  their  charters  had  always 
been  unchangeable  law  —  law  for  the  legislatures  as  well 
as  the  courts  and  private  citizens.  Just  as  Eiel's  case  ^  has 
within  a  month  or  two  been  before  the  Privy  Council  in 
England  to  determine  whether  certain  legislation  in  Canada 
was  ultra  vires,  and  just  as  Indian  legislation  is  now  sub- 
mitted to  English  judicial  supervision,  so  it  was  with  our 
colonial  legislation.  Accordingly,  when  our  Eevolution 
came,  consisting  as  it  did  simply  in  cutting  loose  from 
Great  Britain  and  substituting  the  sovereignty  of  "  the 
people,"  the  colonies  turned  immediately,  as  the  General 
Congress  recommended,  to  the  adoption  of  a  written  charter 
of  government  in  which  the  new  sovereign  should  declare 
his  will.  More  than  a  dozen  of  these  constitutions  (seven- 
teen, we  believe)  had  been  adopted  before  the  Federal  in- 
strument was  framed,  several  of  the  states  having  tried 
their  hand  at  them  repeatedly.  Historically,  therefore, 
it  was  not  in  any  necessity  of  federalism  that  our  written 
constitutions  originated;  it  was  because  among  the  Eng- 
lish people  on  this  side  of  the  water  this  was  and  always 
had  been  their  fashion  of  government.  Professor  Dicey 
has  not  overlooked  the  class  of  facts  to  which  reference  is 
now  made,  or  the  inferences  to  be  drawn  from  them;   but 

>   [Reg.  V.  Rlel,  16  Cox  C.  C.  48.] 


THE   ENGLISH  CONSTITUTION  199 

it  would  seem  that  he  has  hardly  allowed  them  their  due 
weight.  When  he  remarks  of  certain  written  Continental 
constitutions  that  they  do  not  "  contain  a  hint  as  to  the 
mode  in  which  a  law  is  to  be  treated  which  violates  the 
Constitution,"  it  might  have  been  added  that  this  is  true 
also  of  the  Constitution  of  Massachusetts,  framed  in  1779 
and  still  in  force;  and  as  well,  we  doubt  not,  of  every 
other  State  constitution  preceding  the  Federal  one,  and  of 
nearly  every  one  since.  So  far  as  the  language  of  these 
documents  goes  (we  are  not  speaking  of  the  Federal  in- 
strument), there  is  probably  (allowing  for  a  few  excep- 
tions) nothing  in  them  which  requires  a  different  result 
from  that  reached  in  France  and  Belgium,  where  no  court 
"  has  ever  pronounced  judgment  upon  the  constitutionality 
of  an  Act  of  Parliament." 

Why  is  it  that  on  one  side  of  the  water  the  provisions 
of  the  Constitution  are  construed  as  law,  to  be  enforced  in 
the  courts,  and  on  the  other  as  precepts  of  political  duty, 
of  "  constitutional  morality,"  not  enforceable  as  law  ?  It 
is  not  because  "  State  Government  throughout  the  Union 
is  formed  upon  the  Federal  model."  The  existence  of  State 
constitutions  and  of  decisions  in  State  courts  declaring 
laws  unconstitutional  before  the  framing  of  the  Federal 
model,  is  noticed  by  Professor  Dicey  himself.  The  reason 
is,  as  we  have  intimated  before,  because  our  people,  in 
Dicey's  words,  "  had  inhabited  a  colony  governed  under 
a  charter,  the  effect  of  which  on  the  validity  of  the  colonial 
law  was  certainly  liable  to  be  considered  by  the  Privy 
CounciJ,"  as  well  as  by  other  tribunals  in  England  and 
here,  which  were  more  justly  entitled  to  be  designated  as 
judicial  courts  than  the  Privy  Council  was  at  that  period. 
It  was  because  we  had  always  been  familiar  with  the  con- 
ception of  delegated  and  limited  legislative  power,  and 
never  with  any  other  —  with  the  doctrine  which  Yorke 
and  Talbot  expressed  in  1730  when  they  said,  as  to  certain 
laws  in  Maryland,  "  If  any  laws  had  been  there  made  re- 
pugnant to  the  laws  of  England,  they  are  absolutely  null 


200  LEGAL  ESSAYS 

and  void  " ;  which  Murray,  as  Attorney-General,  expressed 
in  May,  1775,  when  he  said  of  a  law  of  Maryland  putting 
a  duty  on  imported  convicts,  "  No  colony  can  make  such 
a  law,  because  ...  it  is  in  direct  opposition  to  the  author- 
ity of  the  Parliament  of  Great  Britain.  .  .  .  There  always 
is  a  restriction  that  they  shall  not  be  contrary  to  the  laws 
of  England."  Accordingly,  when  we  adopted  written  con- 
stitutions, it  seemed  a  natural  thing  to  interpret  them  as 
we  did,  and  to  say  here  also  that  laws  repugnant  to  the  re- 
quirements of  the  new  sovereign  should  be  "  absolutely  null 
and  void." 

There  is  another  matter;  but  one  hesitates  to  approach 
it,  lest  he  get  entangled  in  that  "  prolific  crop  of  .  .  .  con- 
troversial disquisitions  on  sovereignty  "  of  which  Sir  Henry 
Maine  has  spoken  as  a  product  of  our  soil.  Professor  Dicey 
says :  "  One  may  say  with  sufficient  accuracy  for  our  present 
purpose  that  the  legal  sovereignty  of  the  United  States 
resides  in  the  majority  of  the  body  constituted  by  the  Joint 
action  of  three-fourths  of  the  several  States  at  any  time 
belonging  to  the  Union  " ;  and  a  note  refers  us  here  to 
Article  Five  of  the  National  Constitution.  It  is  to  be 
remarked  that  Dicey  refers  to  legal  sovereignty,  as  dis- 
criminated from  the  political  sovereignty,  and  also  that 
he  does  not  here  speak  absolutely  —  his  "  present  purpose  " 
being  that  of  pointing  out  that  the  national  sovereign  here 
is  hard  to  find  and  hard  to  wake  up ;  and  that  is  true 
enough.  But  it  would  be  difficult  to  assent  in  any  sense  to 
this  indication  of  our  "  legal  sovereignty." 

Observe  what  "  legal  sovereignty  "  means ;  this  wiluable 
discrimination  is  emphasized  by  Dicey: 

"  It  should  ...  be  carefully  noted  that  the  term  '  sovereignty,' 
as  long  as  it  is  accurately  employed  in  the  sense  in  which  Austin 
sometimes  uses  it,  is  a  merely  legal  conception  and  means  simply 
the  power  of  law-making  unrestricted  by  any  legal  limit.  If  the 
term  '  sovereignty  '  be  thus  used,  the  sovereign  power  under  the 
English  Constitution  is  clearly  Parliament.  But  the  word 
'  sovereignty '   is  sometimes  employed  in   a   political   rather   than 


THE  ENGLISH  CONSTITUTION  201 

a  strictly  legal  sense.  That  body  is  '  politically '  sovereign  or 
supreme  in  a  State  the  will  of  which  is  ultimately  obeyed  by 
the  citizens  of  the  State.  In  this  sense  of  the  word  the  electors 
of  Great  Britain  may  be  said  to  be,  together  with  the  Crown  and 
the  Lords,  or,  perhaps  in  strict  accuracy,  independently  of  the 
King  and  the  Peers,  the  body  in  which  sovereign  power  is  vested." 

The  will  of  the  electors  really  does  assert  itself  by  the 
present  constitutional  arrangements.  "  But  this  is  a  politi- 
cal, not  a  legal,  fact."  It  will  be  noticed,  then,  that  there 
was  no  "  legal  sovereignty "  among  the  English  colonies 
before  the  Eevolution. 

Now  the  fifth  article  of  our  Constitution  provides  for 
the  manner  of  making  amendments  to  the  Constitution, 
viz. :  by  proposals  from  Congress  on  a  two-thirds  vote  of 
both  houses  or  from  a  national  convention  called  by  Con- 
gress on  application  of  the  legislatures  of  two-thirds  of  the 
States;  the  amendments  thus  proposed  to  be,  in  either 
case,  ratified  by  the  legislatures  of  three-fourths  of  the 
States,  or  by  conventions  in  three-fourths  thereof,  as  Con- 
gress may  propose.  The  Constitution  itself  was  framed  by 
a  national  convention  and  was  submitted  to  State  conven- 
tions; but  all  of  the  fifteen  amendments  heretofore  made 
to  it  have  been  proposed  by  Congress  to  the  separate  legis- 
latures of  the  States  (not  to  State  conventions,  as  they 
might  have  been),  and  have  been  approved  at  different,  con- 
venient times,  as  it  might  happen  in  different  States  — 
languishing  along  sometimes  for  months,  and  even  for 
several  years  before  the  requisite  three-fourths  of  the  legis- 
latures had  acted.  Now,  what  and  where  under  such  cir- 
cumstances is  "  the  body  constituted  by  the  joint  action 
of  three-fourths  of  the  several  States  ?  "  The  Constitution, 
as  regards  the  adoption  of  proposed  amendments,  in  no 
case  contemplates  any  meeting  in  one  of  the  people  or  the 
legislatures  of  the  States.  And  then  cari  that  be  the  "  legal 
sovereign  "  which  may  legally  only  pass  upon  what  is  pro- 
posed to  it  by  Congress  or  a  convention,  and  has  no  legal 
initiative  ? 


202  LEGAL   ESSAYS 

Shall  we  then  say  that  there  is  no  "  legal  sovereign  "  in 
the  United  States  ?  Perhaps  so.  Our  ancestors  were  afraid 
of  recognizing  any  such  legal  thing  as  uncontrollable  power 
anywhere ;  the  political  sovereignty  of  "  the  people "  of 
course  they  recognized.  The  possibility  of  such  a  state  of 
things  is  recognized  by  Professor  Dicey.  "  In  spite,"  he 
says,  "  of  the  doctrine  enunciated  by  some  jurists  that  in 
every  country  there  must  be  found  some  person  or  body 
legally  capable  of  changing  every  institution  thereof,  it  is 
hard  to  see  why  it  should  be  held  inconceivable  that  the 
founders  of  a  polity  should  have  deliberately  omitted  to 
provide  any  means  for  lawfully  changing  its  bases.  .  .  . 
The  question,  however,"  he  goes  on  to  say,  "  whether  a 
federal  constitution  necessarily  involves  the  existence  of 
some  ultimate  sovereign  power  authorized  to  amend  or  alter 
its  terms  is  of  merely  speculative  interest,  for  under  exist- 
ing federal  governments  the  Constitution  will  be  found 
to  provide  the  means  for  its  own  improvement."  But  is  it 
true  that  the  power  to  pass  upon  amendments  proposed  by 
Congress  or  a  convention  is  the  same  thing  as  legal  sov- 
ereignty, i.  e.,  "  the  power  of  law-making  unrestricted  by 
any  legal  limit "  ?  May  "  three-quarters  of  the  states  " 
legally,  i..e.,  by  any  permission  of  the  Constitution,  legis- 
late as  they  please?  No.  All  that  can  justly  be  said  is, 
that  one  very  high  act  of  sovereign  power,  that  of  amend- 
ing the  Constitution,  is  committed,  not  to  three-fourths  of 
the  States,  but  to  the  checked  and  balanced  alternative 
combination  of  agencies  which  is  designated  in  the  fifth 
article.  All  that  is  provided  for  is  "  amending."  Would 
anybody  say  that  there  is  any  legal  power  to  abolish  the 
Constitution,  leaving  us  nothing  in  its  place  ?  If  not,  how 
does  Article  Five  designate  a  legal  sovereign  ? 

This  is,  to  be  sure,  an  old  discussion.  Calhoun,  not  to 
mention  others,  spoke  of  "  the  voice  of  three-fourths  of  the 
States  as  the  highest  power  known  under  the  system." 
Sir  Henry  Maine  also  has  touched  the  question  —  not  in 
his  well-known  discussions  on  sovereignty  in  the  "  Early 


THE   ENGLISH  CONSTITUTION  203 

History  of  Institutions  "  and  in  the  "  Ancient  Law,"  but 
in  a  paper  read  before  the  English  "  Juridical  Society  "  in 
1855.  After  referring  to  the  difficulty  on  the  subject  of 
sovereignty  at  that  time  existing  in  our  country  as  "  likely 
to  grow  to  prodigious  dimensions  before  this  generation 
has  passed  away,"  he  goes  on  to  say :  "  If  any  part  of  the 
American  people  should  be  desirous  of  detaching  more  of 
their  prerogatives  from  the  several  States,  and  of  commit- 
ting the  powers  so  detached  to  the  Federal  authority,  must 
the  consent  of  each  separate  State  be  obtained  to  the  inno- 
vation, or  is  there  any  other  body  distinct  from  the  central 
Government  and  from  the  several  States,  which  can  affect 
the  desired  change  without  infringing  on  positive  law  ?  " 
He  proceeds  to  discuss  and  to  discredit  the  doctrine  of 
"  State  rights,"  and  to  declare  that  the  fifth  article  gives 
"  plenary  powers  of  amending  the  Constitution  ...  to 
three-fourths  of  the  legislatures  of  the  subordinate  States. 
N'ow,  whatever  body,"  it  is  added,  "  has  an  unlimited 
authority  to  introduce  amendments  into  the  Constitution, 
is  of  course  empowered  to  detach  as  great  a  measure  of 
sovereignty  as  it  pleases  from  the  separate  members  of  the 
confederation,  and  to  annex  it  to  the  central  Government 
—  from  which  it  seems  to  follow  that  by  this  fifth  article 
the  sovereignty  over  each  separate  State,  and  over  the  larger 
State  arising  from  the  Federal  Union,  is  made,  in  Mr. 
Austin's  words,  '  to  reside  in  the  States'  Governments  as 
forming  one  aggregate  body.' "  The  italics  are  Maine's. 
These  and  all  like  statements  appear  to  be  open  to  criticism 
as  not  taking  sufficiently  into  account  the  considerations 
above  named.  In  no  sense,  as  we  venture  to  think,  is  it 
true  that  the  entire  sovereignty,  in  the  sense  of  the  legal 
sovereignty,  "  the  power  of  law-making  unrestricted  by 
any  legal  limit,"  is  committed  here  to  any  body  or  combina- 
tion of  bodies.  On  the  other  hand,  that  appears  to  be  true 
which  was  said  by  Mr.  Webster  in  his  argument  in  the 
Ehode  Island  case  (Luther  v.  Borden)  :  "  Though  this 
Government  (that  of  the  Union)  possesses  sovereign  power, 


204  LEGAL  ESSAYS 

it  does  not  possess  all  sovereign  power;  and  so  the  State 
governments,  though  sovereign  in  some  respects,  are  not 
so  in  all.  Nor  could  it  be  shown  that  the  power  of  both, 
as  delegated,  embraces  the  whole  range  of  what  might  be 
called  sovereign  power." 

But  we  must  end  this  consideration  of  Professor  0106^8 
book  and  the  questions  which  it  raises.  One  would  like  to 
comment  on  his  solid  and  sound  utterances  on  the  relation 
of  courts  to  morality ;  e.  g.,  this :  "  There  is  no  legal  basis 
for  the  theory  that  judges,  as  exponents  of  morality,  may 
overrule  acts  of  Parliament."  Is  it  otherwise  here?  Judges 
now  and  then,  especially  in  heated  dissenting  opinions,  as 
in  the  "■  sinking-fund  cases,"  express  themselves  as  if  it 
were  —  as  if  some  things  which  Parliament  might  do  our 
legislatures  could  not  do,  as  being  contrary  to  morality  and 
justice,  because  they  hold  only  a  delegation  of  strictly  legis- 
lative power.  It  would  be  a  good  thing  if  some  judge, 
while  he  has  his  hand  in,  would  show  us  how  he  works  this 
out. 

Another  extremely  interesting  thing  we  have  only  time 
to  touch.  Dicey  refers  to  the  fact  that  what  he  calls  "  con- 
ventions "  —  i.  e.,  understandings,  usages,  not  having  the 
force  of  law  —  exist  in  the  working  of  our  constitutions 
as  well  as  the  English.  That  is  no  doubt  true,  and  it  is 
a  highly  interesting  fact.  He  cites  two,  viz. :  the  con- 
spicuous instance  of  the  Presidential  Electors,  who,  by 
force  of  usage  and  public  opinion  merely  are  held  bound 
to  vote  with  their  party.  If  in  1876  a  Eepublican  Elector 
had  voted  for  Tilden,  it  would  have  been,  in  the  English 
sense,  unconstitutional,  and  yet  not  illegal;  it  would  have 
been  in  our  sense  both  constitutional  and  legal;  and  yet 
in  a  sense  common  to  both  countries  it  would  have  been 
contrary  to  the  "  conventions  of  the  Constitution."  Dicey 
mentions  as  another  "  convention  "  that  a  President  shall 
not  be  re-elected  more  than  once.  That  is  quite  overstated. 
We  have  re-elected  our  Governors  many  times;  and  when 
we  get  a  good  enough  President  it  is  probable  that  no  talk 


THE  ENGLISH  CONSTITUTION  205 

of  a  "  third  term  "'  will  be  any  serious  obstacle  to  re-electing 
him  repeatedly.  There  is,  however,  one  very  interesting 
"  convention,"  touching  the  manner  of  changing  our  State 
Constitutions,  to  which  we  must  allude.  It  has  lately  been 
made  the  subject  of  a  valuable  pamphlet  by  Mr.  C.  S. 
Bradley  of  Rhode  Island,  formerly  Chief  Justice  of  that 
State.  In  controverting  the  doctrine  of  a  recent  advisory 
opinion  (14  E.  I.  649),  given  by  the  judges  of  the  Supreme 
Court  of  that  State  to  the  Legislature,  Judge  Bradley  shows 
that  there  has  grown  up  in  this  country  what  has  been 
called  a  common-law  doctrine  as  to  the  method  of  summon- 
ing the  political  sovereignty  of  the  several  States  into 
action.  This  doctrine,  it  must  be  noticed,  does  not  neces- 
sarily touoh  the  case  of  the  Federal  Government.  But  in 
the  States  it  appears  to  have  become  the  accepted  and  regu- 
lar mode  of  proceeding,  that  the  Legislature  should  propose 
to  the  electors  to  send  delegates  to  a  Constitutional  Con- 
vention. This  is  the  general  practice  equally  where  there 
are  clauses,  like  that  in  the  Federal  Constitution,  provid- 
ing for  amendments  in  other  ways,  and  in  cases  where  there 
are  none;  it  is  irrespective  of  anything  but  a  prohibitory 
provision  in  the  Constitution.  Thus,  it  will  be  seen,  we  are 
bringing  that  wild  creature,  the  political  sovereign,  into 
orderly  conduct  by  convention  and  usage.  So  that,  in  the 
case  of  this  hitherto  untamable  party,  we  may  begin  to  hope 
for  results  like  those  which  Emerson  celebrates  in  record- 
ing the  triumphs  of  civilization  over  "  the  aboriginal  man  " : 
"  They  combed  his  mane,"  he  says,  "  they  pared  his  nails, 
cut  off  his  tail,  set  him  on  end,  sent  him  to  school,  and 
made  him  pay  taxes." 

Political  students  in  England  are  remarking  of  late  years 
upon  the  alarming  facility  with  which  any  Ministry  may 
change  the  Constitution,  and  they  are  turning  with  curious 
interest  to  an  inspection  of  the  highly  conservative  arrange- 
ments of  our  constitutions.  More  and  more  attention  is 
likely  to  be  paid  to  this  subject.  If  it  results  in  the  pro- 
duction of  more  books  of  the  quality  of  Sir  Henry  Maine's 


206  LEGAL  ESSAYS 

essays  on  "  Popular  Government "  and  of  these  lectures 
by  Professor  Dicey,  we  shall  have  great  reason  to  rejoice. 
Thus  far,  as  regards  the  legal  aspect  of  his  subject,  Dicey's 
book  is  of  unique  interest.  We  heartily  commend  it  to  the 
attention  of  students  of  our  constitutional  law.  "  One 
reason,"  he  well  says,  and  it  is  as  true  for  us  as  others, 
''  why  the  law  of  the  Constitution  is  imperfectly  understood 
is,  that  we  too  rarely  put  it  side  by  side  with  the  constitu- 
tional provisions  of  other  countries.  Here,  as  elsewhere, 
comparison  is  essential  to  recognition." 


BEDINGFIELD'S  CASE  —  DECLAEATIONS  AS 
A  PART   OF  THE  RES   GESTA.^ 

[This  article  appeared  in  1880  and  1881  in  three  numbers  of 
the  American  Law  Review  ( 14  Am.  Law  Rev.  817  ;  15  Am.  Law  Rev. 
1,  71).  Its  immediate  occasion  was  the  controversy  between  Chief 
Justice  Cockburn  and  Mr.  Taylor  arising  out  of  the  case  of  Reg. 
V.  Bedingfield,  14  Cox  C.  C.  341 ;  but  Professor  Thayer  took  occa- 
sion to  go  beyond  this  controversy  and  examine  with  charac- 
teristic fulness  and  care  the  res  gesta  question  in  all  its  bearings. 
In  substantially  all  points  the  conclusions  reached  by  Professor 
Thayer  at  this  time  stood  the  test  of  his  many  years  of  later 
study. 

The  article  has  been  cited  by  courts  of  high  authority.  See, 
e.  g.,  Waldele  v.  New  York  Central  R.  R.,  95  N.  Y.  274,  and  State 
V.  Murphy,  IG  R.  I.  528.] 


At  page  341,  in  one  of  the  latest  numbers  of  the  current 
volume  of  Cox's  Criminal  Cases  (vol.  xiv.),  the  case  of 
Regina  v.  Bedingfield  is  reported.  This  case  gave  rise  in 
England  about  a  year  ago  to  a  discussion  on  the  doctrine 
of  admitting  declarations  in  evidence  as  a  part  of  the  res 
gesta,  which  was  peculiarly  valuable  and  instructive.  The 
law  upon  this  topic  to-day  comes  near  answering  Lord 
Denman's  description  of  the  law  of  evidence  in  general  in 
his  time,  when  he  called  it,  not  unjustly,  "  that  neglected 
product  of  time  and  accident";    and  it  is  cause  for  con- 

'  In  using  this  form  of  the  phrase,  —  res  gesta  rather  than  res  gestae, 
—  the  writer  Is  aware  that  he  runs  the  risk  of  seeming  over-nice  about 
a  trifle.  It  Is  believed,  however,  that  the  endeavor  to  give  precision  to 
the  phrase  will  be  materially  forwarded  by  fixing  the  mind  upon  the 
singular  form  of  expression  instead  of  the  plural ;  that  was  the  original 
usage,  at  least  in  questions  of  evidence,  and  it  is  not  at  all  obsolete  to- 
day. This  matter  will  be  referred  to  on  a  later  page.  [Infra,  pp.  244,  248. 
The  singular  form  is  used  throughout  the  able  opinion  of  Earl,  J.,  In 
Waldele  v.  New  York  Central  Railroad,  95  N.  Y.  274.  So  in  OConnell  v. 
Cox,  179  Mass.  250,  the  court  uses  the  form  res  gesta.] 


208  LEGAL  ESSAYS 

gratulation  that  the  ill-digested  doctrine  has  at  last  been 
submitted  to  a  sharp  critical  inquiry.  It  is  proposed  in  the 
present  article,  first,  to  state  briefly  the  tacts  of  Beding- 
field's  case;  second,  to  give  an  abstract  of  the  English  dis- 
cussion referred  to;  third,  to  make  some  comments  upon 
it,  and  to  present  some  considerations  which  may  perhaps 
help  towards  placing  the  law  upon  this  subject  in  a  more 
intelligible  shape. 

Bedingfield  was  indicted  for  the  murder  of  a  neighbor, 
a  widow  by  the  name  of  Rudd,  with  whom  he  had  intimate 
relations.  He  had  conceived  a  resentment  against  her,  and 
had  threatened  to  cut  her  throat.  She  was  a  laundress,  and 
had,  in  her  business,  two  women  assistants.  On  the  morn- 
ing of  her  death,  the  accused  came  to  her  house  earlier 
than  he  had  ever  been  there  before,  and  they  were  together 
in  a  room  for  some  time.  He  went  out,  and  she  was  found 
by  one  of  the  assistants  lying  senseless  on  the  floor,  her 
head  resting  on  a  footstool.  He  went  to  a  shop  and  bought 
some  spirits,  which  he  carried  back  to  the  room  Avhere  Mrs. 
Rudd  was,  both  the  assistants  being  at  that  time  in  the 
yard.  "  In  a  minute  or  two  the  deceased  came  suddenly 
out  of  the  house  towards  the  women  with  her  throat  cut, 
and  on  meeting  one  of  them  she  said  something,  pointing 
backwards  to  the  house.    In  a  few  minutes  she  was  dead." 

The  case  was  tried  at  Norwdch,  on  November  13,  1879,  be- 
fore the  Lord  Chief  Justice  Cockburn.^  The  counsel  for  the 
prosecution  proposed,  in  his  opening  speech,  to  state  to  the 
jury  what  it  was  that  the  deceased  said  as  she  came  out  of 
the  house;  but  the  Chief  Justice  prevented  it,  saying,  in 
substance,  that  "  he  had  carefully  considered  the  question, 
and  was  clear  that  it  could  not  be  admitted,  and  therefore 
ought  not  to  be  stated,  as  it  might  have  a  fatal  effect.  He 
regretted  that,  according  to  the  law  of  England,  any  state- 
ment made  by  the  deceased  should  not  be  admissible.  Then 
could  it  be  admissible,  having  been  made  in  the  absence 

'  The  sudden  death  of  this  eminent  magistrate,  at  midnight  of  No- 
vember 20-21,  1880,  is  announced  since  this  articie  was  in  type. 


BEDINGFIELD'S  CASE  209 

of  the  prisoner,  as  part  of  the  res  gestae  ?  It  is  not  so  ad- 
missible, for  it  was  not  part  of  anything  done,  or  some- 
thing said  while  something  was  being  done,  but  something 
said  after  something  done.  It  was  not  as  if  while  being  in 
the  room,  and  while  the  act  was  being  done,  she  had  said 
something  which  was  heard."  The  counsel  thereupon  made 
no  statement  to  the  jury,  but  said  that  they  should  in  due 
time  offer  it  in  evidence ;  and,  accordingly,  when  one  of  the 
assistants  was  on  the  stand,  and  testified  that  the  deceased 
came  out  of  the  house  bleeding  very  much  at  the  throat,  and 
seeming  very  much  frightened,  and  then  said  something  and 
died  in  ten  minutes,  the  counsel  proposed  to  ask  what  the 
deceased  said;  but  the  Lord  Chief  Justice  ruled  it  out. 
"  Anything,"  he  said,  "  uttered  by  the  deceased  at  the  time 
the  act  was  being  done  would  be  admissible,  as,  for  instance, 
if  she  had  been  heard  to  say  something,  as  '  Don't,  Harry ! ' 
But  here  it  was  something  stated  by  her  after  it  was  all 
over,  whatever  it  was,  and  after  the  act  was  completed." 
The  statement  was  then  offered  as  a  dying  declaration,  but 
ruled  out  on  the  ground  that  it  did  not  appear  that  the 
deceased  knew  that  she  was  dying.  After  this,  a  surgeon 
testified  that  the  wound  completely  severed  the  windpipe, 
the  jugular  vein,  and  the  thyroid  arteries,  and  was  of  such 
a  nature  that  it  could  not  have  been  made  by  the  woman 
herself.  The  defence  was  that  the  deceased  had  cut  her  own 
throat  and  then  that  of  the  accused,  —  the  prisoner  himself 
having  been  found,  just  after  the  deceased  came  out,  lying 
on  the  floor  with  his  own  throat  cut,  and  with  the  razor 
under  his  body  and  under  his  hand  and  with  the  marks  of 
his  fingers  on  the  handle.    The  accused  was  convicted. 

This  statement  of  the  case  is  mainly  taken  from  the  re- 
port in  Cox.  A  somewhat  fuller  report  is  found  in  several 
English  newspapers  of  November  14,  1879,  the  day  after 
the  trial,  e.  g.,  in  "  The  London  Times."  On  November  15, 
"  The  Times  "  made  it  the  text  of  an  editorial  article,  ex- 
pressing regret  at  the  condition  of  the  law  of  evidence,  as 
thus  laid  open.    This  article  called  out  Mr.  J.  Pitt  Taylor, 

14 


210  LEGAL  ESSAYS 

the  author  of  the  leading  English  treatise  on  Evidence,* 
who  wrote  on  the  same  day  a  note  to  "  The  Times " 
(printed  on  November  17),  denying  the  correctness  of  the 
Chief  Justice's  ruling.  In  the  doctrine  that  the  declara- 
tion was  inadmissible  as  a  dying  declaration,^  he  did  in- 
deed acquiesce,  but  he  insisted  that  it  should  have  been 
received  as  part  of  the  res  gesta,  —  "  as  original  evidence, 
being  distinguished  from  mere  hearsay  by  its  connection 
with  the  principal  fact  under  consideration.  .  .  .  The 
surrounding  circumstances,  whether  they  consist  of  dec- 
larations or  of  acts,  may  always  be  shown  to  the  jury 
along  with  the  principal  fact,  provided  they  constitute 
parts  of  what  are  termed  the  res  gestae;  and  I  am  at 
a  loss  to  imagine  what  sensible  interpretation  can  be  put 
upon  those  words,  if  they  are  not  to  include  the  cries  and 
complaints  of  a  woman  who  is  apparently  running  from  an 
assailant  with  her  throat  cut."  Mr.  Taylor  then  cited  in 
support  of  his  view  (with  the  remark  that  he  could  readily 
cite  many  authorities  the  same  way)  the  cases  of  R.  v. 
Foster,  6  C.  &  P.  325,  and  Thompson  and  Wife  v.  Treva- 
nion.  Skinner,  402.  He  added,  that  the  last  case  had  re- 
ceived the  approbation  of  Lord  Ellenborough.^ 

'  A  treatise  which,  in  great  part,  is  expressed,  and  purports  to  be  ex- 
pressed, in  the  exact  language  of  Professor  Greenleaf's  worlc.  If  Mr. 
Taylor,  in  abandoning  his  original  purpose  of  merely  editing  Greenleaf, 
had  indicated  the  real  nature  of  his  book,  not  merely  in  the  ample  ac- 
linowledgments  found  in  his  preface  and  elsewhere,  but  in  the  title  of 
the  boolc ;  if,  for  instance,  he  had  called  it  "Taylor's  Greenleaf,"  — 
less  dissatisfaction  with  his  course  would  have  been  felt  on  this  side  of 
the  water. 

^  It  is  not  proposed  to  consider  that  branch  of  the  case  now.  See 
Reg.  V.  Morgan,  14  Cox  C.  C.  337.  [As  to  dying  declarations  see 
Thayer's  Cas.  Ev.  (2d  ed.)  349-370.  "The  use  of  such  declarations  in 
cases  of  homicide  is  very  ancient,  long  antedating  our  law  of  evidence, 
and  running  back  into  the  very  beginnings  of  trial  by  jury  in  criminal 
cases.  Probably  it  is  even  far  older  than  that.  In  1202,  1  Sel.  PI.  Cr. 
(Seld.  Soc.)  11.  27,  in  an  appeal  of  slaying,  we  read  that  'the  king's 
Serjeant  and  the  two  knights  who  made  view  of  the  wounded  man  (who 
lived  four  weeks  and  a  half  after  the  wounding)  testify  that  Robert  said 
that  Godard  and  Humphrey  thus  wounded  him,  and  that,  should  he  get 
well,  he  would  deraign  this  against  them,  and,  should  he  not,  then  he 
wished  that  his  death  might  be  imputed  to  them.'  And  so  see  another 
case,  twenty  or  thirty  years  later,  in  Plac.  Ab.  104,  col.  2."  Thayer's 
Cas.  Ev.   (2d  ed.)  349.] 

*  In  Aveson  v.  Kinnaird,  6  East,  188. 


BEDINGFIELD'S  CASE  211 

This  letter  from  Mr.  Taylor  was  not  the  only  criticism 
which  this  case  called  forth.  Another  letter  in  "The  Times" 
soon  followed  it,  signed  "  A  Barrister  Present  at  the  Trial/' 
in  which  it  was  declared  not  only  that  the  woman's  declara- 
tion "  certainly  was  admissible  "  as  part  of  the  res  gesta, 
but  also  that  it  was  "  clearly  admissible  as  a  dying  declara- 
tion " ;  and  on  this  last  head  reference  was  made  to  East's 
Pleas  of  the  Crown,  357,  R.  v.  Cleary,  2  F.  &  F.  850,  and 
to  "  the  case  at  Maidstone  similar  to  that  at  Norwich,"  — 
meaning  the  case  of  R.  v.  Morgan,  now  reported  in  14  Cox 
C.  C.  337. 

These  and  other  attacks  now  brought  upon  the  scene  no 
less  a  personage  than  the  Lord  Chief  Justice  of  England 
himself,  who  published  in  December  a  vivacious  pamphlet 
of  twenty-four  pages,i  in  which  he  freed  his  mind  upon  the 
subject  in  a  very  readable  manner.  After  snubbing  Mr. 
Taylor  —  a  lawyer,  and  himself  a  judge  —  for  "  question- 
ing the  ruling  of  a  judge,  by  an  appeal  to  the  public,"  and 
after  sitting  heavily  upon  the  "  Barrister  who  was  Present 
at  the  Trial,"  as  presumably  young  and  inexperienced,  the 
Lord  Chief  Justice  disposes  in  a  few  pages  of  the  point 
about  dying  declarations,  and  then  devotes  the  last  two- 
thirds  of  his  pamphlet  to  the  subject  of  the  res  gesta.  He 
proceeds  by  dealing,  first,  with  the  authorities,  and,  second, 
with  the  text-books ;  and  then,  after  some  general  considera- 
tions, he  boldly  addresses  the  task  of  defining  the  term  "  res 
gestae  as  applied  to  a  criminal  case,"  and  goes  on  to  apply 
his  definition  to  the  case  in  hand.  Near  the  end  of  the 
pamphlet  he  makes  the  important  revelation  that  he  had 
read  the  depositions  before  the  trial,  "  and  being  therefore 
sensible  of  the  vital  importance  of  the  evidence  in  question 
to  the  accused  on  the  coming  trial,  I  took  advantage  of  a 
break  in  the  circuit  to  seek  the  assistance  and  advice  of  my 

'  "  A  Letter  to  John  Pitt  Taylor,  Esq.,  in  Answer  to  liis  Letter  in 
The  Times  of  the  17th  of  November,  on  the  ruling  of  the  Lord  Chief 
Justice  in  the  Case  of  Reg.  v.  Bedingfleld,  by  the  Lord  Chief  Justice. 
London :  Vacher  &  Sons,  29  Parliament  Street,  and  62  Mlllbank  Street, 
Westminster.     1879." 


212  LEGAL  ESSAYS 

two  colleagues  of  the  Queen's  Bench  Division,  Mr.  Justice 
Field  and  Mr.  Justice  Manisty,  —  the  other  members  of 
the  court  being  then  absent  on  circuit,  —  on  the  point  of 
its  admissibility."  They  both  agreed  that  it  was  inadmis- 
sible, and  "  adhere  to  the  opinion  they  then  came  to."  The 
Chief  Justice  presently  adds :  "  I  am  firmly  persuaded,  and 
I  do  not  speak  unadvisedly,"  that  the  Court  of  Criminal 
Appeal,  if  the  question  had  been  carried  up,  would  have 
held  the  evidence  inadmissible. 

To  return  to  the  body  of  the  pamphlet.  The  Chief  Jus- 
tice questions  the  soundness  of  the  two  cases  cited  by  Mr. 
Taylor,  and  of  Lord  Ellenborough's  dictum  in  Aveson  v. 
Kinnaird,  and  cites  the  criticisms  of  Eoscoe  in  his  "  Crim- 
inal Evidence  "  upon  both  the  cases.^  He  adds,  as  the  only 
other  authority  "  in  our  own  courts,"  of  which  he  is  aware, 
the  case  of  Eeg.  v.  Lunny,  6  Cox  C.  C.  477,  an  Irish  case, 
which  he  also  questions,  —  and  then  he  cites  as  supporting 
him  "  the  learned  editor  of  the  last  edition  of  Eussell  on 
Crimes."  "  The  American  decisions,"  it  is  added,  "  have  no 
doubt  gone  still  further  " ;  and  the  cases  of  Com.  v.  McPike, 
3  Cush.  181,  Traveller's  Ins.  Co.  v.  Mosley,  8  Wall.  397,  and 
Harriman  and  Wife  v.  Stowe,  57  Mo.  93,  are  cited.  These, 
and  other  cases  referred  to  in  a  note  to  the  last  edition  of 
Greenleaf,  p.  131,  he  considers  to  go  the  length  of  establish- 
.  ing,  as  the  editor  there  says,  that  " '  if  the  declaration  is 
connected  with  or  grows  out  of  the  act,  though  not  contem- 
poraneous with  it,  but  happening  after  the  lapse  of  some 
time,  it  is  admissible  as  part  of  the  res  gestae'  —  a  doctrine 
certainly  not  yet  recognized  in  our  law." 

The  Lord  Chief  Justice  now  turns  to  the  text-books :  "  I 
take  down  Professor  Greenleaf's  learned  work  on  the  Law 
of  Evidence,  and  —  what  could  I  possibly  do  better?  — 
that  great  repertory  of  Evidenciary  Law,  Taylor  on  the 
Law  of  Evidence.  ...  I  am  doomed  to  be  disappointed." 

'  These  criticisms,  as  Mr.  Taylor  afterwards,  with  a  certain  glee, 
points  out.  were  not  Roscoe's,  but  those  of  a  young  editor,  made  after 
Roscoe's  death,  and  incorporated  in  the  text,  according  to  a  vicious 
method,  without  anything  to  show  their  separate  origin. 


BEDINGFIELD'S  CASE  21.3 

The  Chief  Justice  finds  in  Greenleaf  s  s.  107  (it  should  read 
s.  108)  "a  fine  philosophical  flourish,  .  .  .  the  profundity 
of  thought  deepening  as  he  advances.  .  .  .  Having  pon- 
dered with  befitting  reverence  on  the  profound  train  of 
thought  involved  in  these  high-sounding  and  far-reaching 
phrases,  I  come  back  to  the  question  of  '  res  gestae/  and 
read  on.  .  .  .  Instead  of  finding  any  rule  for  my  guidance, 
I  am  told  that  it  is  a  matter  for  the  judge  to  determine, 
according  to  his  sound  discretion."  Greenleaf,  he  adds, 
does  indeed  say  that  "  the  principal  points  of  attention  are, 
whether  the  circumstances  were  contemporaneous  with  the 
main  fact  under  consideration,  and  whether  they  were  so 
connected  with  it  as  to  illustrate  its  character.  The  defini- 
tion is  good  so  far  as  it  goes;  but  in  the  use  of  the  word 
'  contemporaneous,'  without  more,  it  obviously  leaves  the 
main  difficulty  unsolved.  .  .  .  Dissatisfied,  as  I  have  said, 
v/ith  the  decisions,  and  deriving  no  assistance  from  the 
writers  on  this  branch  of  the  law,  I  must  endeavor  to  solve 
the  difficulty  by  my  own  efforts." 

In  proceeding  to  do  this,  the  Chief  Justice,  after  re- 
marking by  the  way,  first,  that  the  question  is  not  what  the 
law  ought  to  be,  but  what  it  is,  and,  second,  that  "  we  are 
dealing  with  an  exception  engrafted  on  a  fundamental  rule 
of  our  criminal  procedure,"  —  points  out  the  possibility  of 
abuse  in  receiving  such  testimony  as  affording  "  a  strong 
argument  against  the  expediency  of  admitting  declarations 
at  all  except  within  very  narrow  and  fixed  limits."  In  the 
course  of  these  remarks  he  says  this :  "  There  are  those  who 
think  that  if  the  view  taken  in  the  American  cases  is  not 
law,  it  should  be  so,  and  that  whatever  flows  out  of,  or  is 
connected,  though  through  intermediate  circumstances,  and 
though  after  an  interval  of  time,  with  the  fact  which  is  the 
subject-matter  of  the  inquiry,  if  calculated  to  throw  light 
on  it,  should  be  receivable  in  evidence.  Possibly,  when  the 
inability  of  an  accused  person  to  give  evidence  in  his  own 
favor  shall  have  been  removed,  a  restriction  on  the  admis- 
sibility of  statements  made  against  him  in  his  absence,  and 


214  LEGAL  ESSAYS 

which,  unanswered,  may  operate  to  his  prejudice,  —  a  re- 
striction imposed  for  the  protection  of  possible  innocence, 
—  may  be  advantageously  removed  in  the  interest  of 
justice." 

And  so,  finally,  we  come  to  the  Chief  Justice's  own  answer 
to  the  question,  "  Looking  to  the  law  as  it  exists,  .  „  .  what 
is  the  meaning  of  the  term  res  gestae,  as  applied  to  a  crim- 
inal case  ?  To  this  I  should  propose  to  answer  thus :  What- 
ever act,  or  series  of  acts,  constitute,  or  in  point  of  time 
immediately  accompany  and  terminate  in,  the  principal  act 
charged  as  an  offence  against  the  accused,  from  its  inception 
to  its  consummation  or  final  completion,  or  its  prevention 
or  abandonment,  —  whether  on  the  part  of  the  agent  or 
wrong-doer,  in  order  to  its  performance,  or  on  that  of  the 
patient  or  party  wronged,  in  order  to  its  prevention,  —  and 
whatever  may  be  said  by  either  of  the  parties  during  the 
continuance  of  the  transaction,  with  reference  to  it,  includ- 
ing herein  what  may  be  said  by  the  suffering  party,  though 
in  the  absence  of  the  accused,  during  the  continuance  of 
the  action  of  the  latter,  actual  or  constructive,  —  as,  e.  g., 
in  the  ease  of  flight  or  applications  for  assistance,  —  form 
part  of  the  principal  transaction,  and  may  be  given  in 
evidence  as  part  of  the  res  gestae,  or  particulars  of  it; 
while,  on  the  othei  hand,  statements  made  by  the  com- 
plaining party,  after  all  action  on  the  part  of  the  wrong- 
doer, actual  or  constructive,  has  ceased,  through  the  com- 
pletion of  the  principal  act  or  other  determination  of  it  by 
its  prevention  or  its  abandonment  by  the  wrong-doer,  — 
such  as,  e.  g.,  statements  made  with  a  view  to  the  appre- 
hension of  the  offender,  —  do  not  form  part  of  the  res 
gestae,  and  should  be  excluded." 

After  illustrating  the  application  of  this  principle  by  a 
variety  of  supposed  facts,  the  Chief  Justice  gives  as  au- 
thority for  it  "  the  established  practice  in  the  analogous 
case  of  a  prosecution  for  rape,"  where,  although  the  fact 
that  the  woman  made  a  complaint  soon  after  the  event  is 
admissible,  yet  the  particulars  of  the  statements  may  not 


BEDTNGFIELD'S  CASE  215 

be  shown.  The  case  of  E.  v.  Osborne,  1  C.  &  M.  622,  is 
cited  on  this  subject  as  "  directly  in  point."  In  applying 
the  principle  to  the  Bedingfield  case,  it  is  insisted  that  when 
the  woman  came  out  of  the  house  with  her  throat  cut,  all 
action  on  Bedingfield's  part  had  ceased:  he  had  cut  his 
throat  and  fallen  to  the  ground,  and  the  woman  must  have 
known  it;  while  she  was  not  fleeing  from  an  assailant,  but 
coming  out  to  get  assistance  "  with  reference  to  her  wound." 
On  this  last  point  he  charges  Mr.  Taylor  with  misappre- 
hending the  facts  of  the  case. 

Such  is  an  abstract  of  the  pamphlet.  It  contains,  as 
will  have  been  noticed,  a  courageous  and  valuable  endeavor 
to  put  limits  to  the  doctrine  of  the  res  gesta;  how  success- 
ful this  effort  should  be  deemed  we  shall  consider  fur- 
ther on. 

Before  the  month  of  December  was  out  there  came  a  long 
reply  from  Mr.  Taylor,  a  pamphlet  of  twenty-nine  ])ages,^ 
containing  in  an  appendix  his  original  letter  to  "  The 
Times."  Mr.  Taylor  finds  occasion  to  complain  of  some 
"sentiments  and  expressions"  in  the  letter  of  the  Lord  Chief 
Justice,  which  he  considers  to  be  "  neither  consistent  with 
your  dignity,  your  generosity,  nor  your  justice,"  and  meets 
his  "  raillery  respecting  .  .  .  '  Taylor  on  the  Law  of  Evi- 
dence,' "  by  printing  at  length  a  letter  of  praise  from  the 
same  hand,  dated  in  1864,  in  which  Mr.  Taylor  is  told: 
"  I  cannot  sufficiently  express  my  sense  of  the  value  of  the 
work  in  its  present  complete  and  perfect  form.  Nothing 
more  is  required.  All  that  could  be  done  or  desired  in  this 
department  of  our  jurisprudence  is  accom.plivshed,"  &c. 
Mr.  Taylor  also  complains  that  the  Chief  Justice  should 
have  made  himself  "  quite  so-  merry "  at  Mr.  Greenleaf's 
expense,  and,  with  a  certain  generosity,  desires  him  to 
limit  his  scarcasms  to  him,  since  he  has  adopted  Green- 

^  "  A  Letter  to  the  Right  Honourable,  the  Lord  Chief  .Justice  of  Eng- 
land, G.C.B.,  etc.,  etc.,  etc.  In  reply  to  his  Lordship's  Letter  on  the 
Bedingfleld  Case.  By  John  Pitt  Taylor.  Audi  Alteram  Partem.  Lon- 
don :  VS^illiam  Maxwell  &  Son,  20  Fleet  Street,  E.  C.  Law  Booksellers 
and  Publishers,  1880."     The  letter  is  dated  Dec.  30,  1879. 


216  LEGAL  ESSAYS 

leafs  words.  "  I  will  admit,"  he  naively  adds,  "  that  the}; 
are  undeserving  of  praise;  indeed,  they  may  be  described, 
with  tolerable  accuracy,  as  '  full  of  sound,  signifying 
nothing.' '"'  But  he  pleads,  in  extenuation,  that  the  Judges 
had  given  him  no  better  words,  "  and  that,  after  all,  they 
were  not  —  as  some  words  I  have  read  — '  full  of  sound 
and  fury,'  with  a  like  significance."  Our  readers  will  agree 
that  it  is  a  sorry  sight  to  find  the  Lord  Chief  Justice  of 
England  a  party  to  a  controversy  which  is  flavored  with 
such  particulars  as  these;  the  regret  is  not  lessened  on 
observing  that  his  own  manner  of  conducting  the  debate 
was  such  as  justly  to  sting  his  adversaries  to  personal  re- 
sentment. Leaving  this  aspect  of  Mr.  Taylor's  pamphlet, 
let  us  now  briefly  state  his  main  points. 

Mr.  Taylor  denies  the  charge  of  having  "  misappre- 
hended "  the  facts  in  Bedingfield's  case ;  he  had  stated  that 
the  woman  was  "  running  "  out  of  the  house,  and  the  Chief 
Justice  replied  that  she  was  "  not  running."  He  quotes 
"The  Daily  News"  report  as  saying  that  she  was  "running," 
and  "The  Times"  report  as  saying  that  she  was  met  "as  she 
rushed  out  of  the  house."  "  The  report  of  the  trial  stated 
that  Mrs.  Rodwell  saw  her  '  coming  out  of  the  gate,'  and 
that  Mrs.  Simpson  '  heard  a  woman's  scream,  and  saw  her 
coming  from  the  house.'  The  reporter  described  her  as 
'  immediately  after  the  act  coming  out  of  the  house  with 
her  throat  cut,  and  staggering  towards  the  women.'  .  .  . 
But,  after  all,  what  possible  difference  can  it  make  in  the 
merits  of  the  argument  whether  the  woman  was  running, 
or  walking,  or  staggering,  or  rushing,  or  even  standing  still 
or  lying  down?  The  words  were  unquestionably  uttered 
almost  immediately  after  the  scream,  et  dum  fervet  opus, 
and  their  admissibility  as  evidence  cannot  depend  upon  the 
activity  or  the  posture  of  the  person  making  them."  Again, 
Mr,  Taylor  had  said  that  the  woman's  exclamation  was  made 
as  she  was  "  coming  out  of  her  house " ;  but  the  Chief 
Justice  asserts  that  she  was  "  from  twenty-five  to  thirty 
yards  from  her  door."     To  this  it  is  replied  by  quoting 


BEDINGFIELD'S  CASE  217 

two  witnesses  and  the  summing  up  of  the  Chief  Justice 
himself  as  confirming  Mr.  Taylor,  and  it  is  again  added, 
that  the  difference  is  not  material,  "  so  long  as  the  woman 
was  giving  alarm  and  seeking  for  assistance."  The  last 
"  misapprehension  "  was  that  of  representing  the  woman  as 
"  apparently  running  away  from  an  assailant " ;  the  Chief 
Justice  denies  that  this  was  true,  —  "  she  had  left  the  assail- 
ant lying  in  her  front  room  with  his  throat  cut,  which,  as 
appeared  from  her  gestures  when  brought  into  the  house, 
she  perfectly  well  knew."  To  this  Mr.  Taylor  replies,  first, 
by  pointing  out  that  the  Chief  Justice's  position  makes  it 
essential  not  merely  that  Bedingfield  should  have  been  dis- 
abled, but  that  the  deceased  should  know  it,  — "  if  an 
assailant  in  his  pursuit  had  fallen  and  broken  his  leg,  and 
the  assailed  was  not  aware  of  this,  but  still  imagined  that 
he  was  being  followed,"  it  could  make  no  difference;  and, 
second,  by  denying  that  there  is  any  ground  whatever  in 
the  evidence  for  asserting  that  the  woman  knew  that  Beding- 
field was  disabled,  —  all  that  could  be  inferred  from  her 
gestures  was  "  the  simple  fact  that  the  woman's  throat  had 
been  cut  in  the  room  where  the  prisoner  was  found,  .  .  . 
and  that  the  horror  of  the  attack  was  still  vividly  present 
to  her  mind";  and,  third,  Mr.  Taylor  declares  that  even 
assuming  it  to  be  established  that  the  woman  knew  her 
assailant  to  be  unable  to  do  her  further  harm,  "  and  that 
she  went  out  for  the  sole  purpose  of  getting  her  throat 
bound  up,"  still,  "  according  to  the  decided  cases  and  prin- 
ciple, the  exclamation  ought  to  have  been  received  as  part 
of  the  res  gestae." 

This  brings  Mr.  Taylor  to  a  consideration  of  the  cases. 
The  cases  of  R.  v.  Foster  and  Thompson  and  Wife  v. 
Trevanion,  cited  by  him  in  his  former  letter,  are  defended; 
of  the  former,  it  is  said  that  it  is  "  cited  as  an  unshaken 
decision  by  Starkie,  Phillipps,  Roscoe,  Arohbold,  Goodeve, 
Norton,  and  last,  though  not  least,  by  Mr.  Justice  J.  Fitz- 
james  Stephen;  in  his  able  Digest  of  the  Law  of  Evidence." 
E,  V.  Lunny  is  also  upheld  as  "  perfectly  sound  law."    And, 


218  LEGAL  ESSAYS 

finally,  E.  v.  Megson,  9  C.  &  P.  420,  is  given  as  establishing, 
according' to  Mr.  Taylor's  judgment,  that  in  a  prosecution 
for  rape  the  details  of  the  woman's  statement,  made  upon 
her  return  home  after  the  assault,  may  be  received  for  the 
purpose  of  disproving  consent,  although  they  cannot  be  re- 
ceived to  show  who  committed  the  offence.  Mr.  Taylor 
cites  no  other  cases.  "  I  might,"  he  says,  "  here  add  a 
cloud  of  other  authorities.  .  .  .  But  I  refrain,  for  if  your 
Lordship  is  not  convinced  by  the  four  cases  I  have  already 
cited,  neither  would  you  be  persuaded  though  I  brought  to 
your  notice  a  dozen  more."  R.  v.  Osborne  is  disposed  of 
by  declaring  "  the  language  put  into  the  judge's  .mouth  .  .  . 
grotesquely  indecent  and  curiously  illogical,"  and  declining 
to  comment  upon  it.  The  American  decisions  to  which  the 
Chief  Justice  had  referred  are  emphatically  disapproved; 
"  as  exponents  of  the  English  law,  they  seem  to  me  to  err 
as  far  on  one  side  of  the  true  line  of  demarcation  as  your 
Lordship  has  erred  on  the  other." 

The  application  made  by  Mr.  Taylor  of  the  case  of  R.  v. 
Megson  is  noticeable.  He  considers  the  question  in  Beding- 
field's  case  to  have  been  simply  whether  he  or  the  woman 
herself  had  done  the  deed,  and  not  whether  he  "  or  Jones 
or  Styles  had  committed  the  murder.  Had  such  been  the 
issue,  your  Lordship,  in  conformity  with  the  case  of  R.  v. 
Megson,  should  have  rejected,  not  the  whole  statement  of 
the  woman,  but  merely  Bedingfield's  name.  Her  exclama- 
tion, as  admitted,  would  have  then  run  thus :  '  0  aunt,  see 
what  has  been  done  to  me,'  instead  of  '  0  aunt,  see  what 
Bedingfield  has  done  to  me.'  Bedingfield's  name  would 
have  been  withheld  because,  first,  it  had  nothing  to  do  with 
the  question  how  her  throat  came  to  be  cut;  and,  next,  it 
was  a  matter  in  which  the  most  truthful  person  could  easily 
have  been  mistaken.  And  a  judge,  in  the  exercise  of  a 
sound  discretion,  might  well  come  to  the  conclusion  that, 
without  the  test  afforded  by  cross-examination,  such  a  state- 
ment of  recognition  could  not  safely  be  admitted."  Upon 
this  view,  some  comments  will  be  submitted  hereafter. 


BEDINGFIELD'S  CASE  219 

After  thus  considering  the  authorities  and  touching  upon 
some  minor  miscellaneous  points,  Mr.  Taylor  denies  the 
Chief  Justice's  position  that  "we  are  dealing  with  an  ex- 
ception engrafted  on  a  fundamental  rule  of  our  criminal 
procedure,"  — "  we  are  not  dealing  with  an  exception  at 
all,  but  with  a  fundamental  and  independent  rule";  and 
he  cites  Eoscoe's  Criminal  Evidence  (ed.  1878),  p.  25,  and 
an  expression  from  section  583  of  his  own  work.  And  then 
the  writer  comes  to  the  Chief  Justice's  definition,  of  which 
he  says :  "  I  have  read  the  twenty  lines  of  your  definition, 
with  an  earnest  desire  to  derive  enlightenment  from  them, 
but  I  confess  that,  after  the  perusal,  I  have  found  myself 
enveloped  in  a  fog,  dense  as  that  by  which  1  am  now,  as  I 
write,  surrounded."  One  part  of  the  definition,  viz.,  that 
what  is  said  by  the  suffering  party  when  in  flight  or  apply- 
ing for  assistance  is  admissible,  would  seem  to  admit  the 
declaration  in  the  Bedingfield  case ;  but  subsequent  ex- 
planations limit  the  meaning  of  "  assistance."  Turning 
back  to  the  first  definition,  it  appears  that  statements  made 
after  all  action  on  the  part  of  the  offender  has  ceased,  "  with 
a  view  to  the  apprehension  of  the  offender,"  must  be  ex- 
cluded. "  If  that  be  so,  a  cry  of  '  stop  thief '  forms  no 
part  of  the  res  gestae."  But  yet  in  another  illustration  it' 
appears  that  this  is  not  meant.  "  In  the  midst  of  these 
counter-illustrations,"  Mr.  Taylor  is  perplexed ;  "  and  all 
that  I  have  learned  is,  that  Dr.  Greenleaf  was  not  far 
wrong  when  he  observed  that  it  was  'difficult,  if  not  im- 
possible, to  bring  this  class  of  cases  within  the  limits  of 
a  more  particular  description.'  " 

Such,  in  the  main,  are  the  positions  taken  by  the  parties 
to  this  very  interesting  controversy.  The  feature  of  con- 
spicuous interest  in  it  is  the  Chief  Justice's  definition, — 
the  effort  of  a  powerful,  well-furnished,  and  practised  legal 
intellect  to  reduce  the  law  upon  this  subject  to  a  clear 
rule.  This  is  a  sort  of  work  of  which  there  is  but  too  little 
from  the  hands  of  such  men,  and  it  is  to  be  cordially  wel- 


220  LEGAL  ESSAYS 

corned,  even  when  welcomed  with  criticism.  We  dissent 
from  Mr.  Taylor's  view  that  the  term  res  gesta,  or  any 
other  term  which  is  employed  in  legal  reasoning,  "  must 
be  left  unfettered  by  useless  definition,  and  be  determined 
in  each  case,  either  by  the  judge  or  the  jury,  in  the  exercise 
of  a  sound  discretion."  A  term  that  cannot  be  defined 
should  be  dropped.  It  would  seem,  however,  that  Mr.  Tay- 
lor's criticisms  upon  this  particular  definition  are  in  some 
respects  just.  To  our  mind  there  are  three  objections  to 
it :  first,  that  in  view  of  the  Chief  Justice's  own  commentary 
upon  the  definition  its  meaning  is  doubtful;  second,  that 
if  it  is  correctly  applied  in  Bedingfield's  case,  it  is  not  sup- 
ported by  the  cases;  and,  third,  that,  as  thus  applied,  it 
is  bad  in  principle. 

In  what  follows  we  propose,  among  other  things,  to  jus- 
tify these  objections.  Proceeding  somewhat  informally,  — 
in  a  great  degree,  by  the  way  of  taking  up  the  questions 
suggested  in  the  discussion  of  which  an  account  has  now 
been  given,  —  we  shall  endeavor  to  clear  up  some  incidental 
matters,  to  analyze  the  meaning  of  the  phrase  res  gesta 
as  used  in  the  law  of  evidence,  to  examine  some  of  the 
cases,  and  in  a  measure  to  classify  them,  and,  finally,  to 
arrive  at  some  conception  and  statement  of  the  doctrine 
on  this  head  which  will  be  clear  and  will  bear  examination. 

I.  The  Chief  Justice  carefully  limits  his  definition  to 
criminal  cases.  He  also  designates  the  principle  in  ques- 
tion as  "  an  exception  engrafted  on  a  fundamental  rule 
of  our  criminal  pvcedure  " ;  and  he  intimates  that  when 
persons  accused  of  crime  are  admitted  (as  they  are  nearly 
if  not  quite  everywhere  in  this  country)  to  give  evidence 
in  their  own  favor,  the  rule  may  properly  be  relaxed.  The 
Chief  Justice  does  not  indeed,  in  terms,  state  that  there 
is  a  different  rule  as  to  the  res  gesta  in  civil  and  in  criminal 
cases,  but  he  appears  to  intimate  it  in  the  ways  above 
named ;  he  limits  his  definition  to  "  the  term  res  gestae 
as  applied  to  a  criminal  case."  For  the  view  thus  intimated 
he  cites  no  authority,  and  we  are  not  aware  that  there  is 


BEDINGFIELD'S  CASE  221 

any  authority  whatever.^  It  is  true  there  is  a  familiar 
principle  in  criminal  law  that  evidence  against  an  accused 
person  must  be  given  in  his  presence.^  We,  in  this  coun- 
try, value  this  principle,  and  have  incorporated  it  in  our 
written  constitutions  of  government.  But  the  rule  is  no- 
where, in  either  country,  held  to  cut  down  the  admission 
of  declarations  which  are  a  part  of  the  res  gesta,  any  more 
than  the  admission  of  the  declarations  of  a  deceased  person 
against  interest.  To  receive  declarations  in  a  criminal  case, 
which  are  a  part  of  the  res  gesta,  whether  the  accused  can 
testify  in  his  own  behalf  or  not,  is  no  more  a  hardship  than 
it  is  to  receive  anything  else;  they  are  as  likely  to  work 
in  his  favor  as  to  work  against  him.^  The  business  of 
supplementing  the  defects  or  correcting  the  harshness  of 
the  criminal  law  by  judicial  legislation  has  gone  great 
lengths  in  former  days;  in  evidence,  for  example,  a  dis- 
tinction between  a  certain  sort  of  admissions  in  criminal 
cases  and  in  civil  cases  was  worked  out,  and  is  now  estab- 
lished. But  no  distinction  between  civil  cases  and  criminal 
cases  as  to  the  admission  of  declarations  as  a  part  of  the 
res  gesta  has  as  yet  been  made  out,  and  it  is  very  late  in  the 
day  to  adventure  upon  such  an  enterprise. 

We  conceive,  then,  that  what  is  law  on  this  subject  for 
a  criminal  case  is  law  for  a  civil  case,  and  vice  versa. 

II.  In  looking  over  these  pamphlets,  one  is  struck  with 
the  extreme  meagreness  of  both  of  them  in  the  citation  of 
cases.  The  Chief  Justice  cites  but  one  in  support  of  his 
view,  and  that  a  case  at  nisi  prins"^  relating  to  rape,  in 

^  It  would  seem  that  the  reason  for  resorting  to  this  distinction  is  a 
desire  to  avoid  the  pressure  of  certain  loose  cases  on  the  civil  side. 
One  would  not  think  it,  from  the  tone  adopted  by  the  writers  of  these 
pamphlets  towards  "  the  American  cases,"  —  but  it  is  true  that  there 
is  nothing  looser  upon  the  doctrine  of  the  res  gesta  to  be  found  anywhere 
than  is  found  in  the  English  cases. 

-  MacNally,  Evidence,  14,  360. 

^  See,  e.  g.,  Hamilton  v.  The  State,  36  Ind.  280,  where,  on  an  indict- 
ment for  assault  with  intent  to  rob,  a  declaration  made  by  the  prisoner, 
while  beating  his  victim,  that  he  was  doing  it  "  to  pay  him  up  "  for  a 
previous  assault  on  him,  was  held  admissible. 

*  It  is  most  unsatisfactory,  in  discussing  cases,  to  have  to  deal  with 
the  slender  reports  at  nisi  prtus.     The  law  has  suffered  beyond  measure 


222  LEGAL  ESSAYS 

which  a  dictum  of  Mr.  Justice  Cresswell  seems  to  lend  it 
some  support;  but  the  case  does  not  involve  the  doctrine 
of  the  res  gesta,  in  the  Chief  Justice's  conception  of  that 
doctrine,  at  all.  The  common  rule  in  cases  of  rape  is  that 
the  fact  of  an  early  complaint  made  by  the  woman  upon 
whom  the  offence  is  alleged  to  have  been  committed  may 
be  given  in  evidence,  but  the  particulars  of  her  statement 
may  not.  In  order,  however,  to  make  this  fact  —  the  fact 
of  the  complaint  —  admissible,  it  is  not  at  all  necessary 
that  it  should  have  been  contemporaneous  with  the  offence ; 
it  is  admissible  without  any  reference  to  that;  and  so, 
although  it  is  no  part  of  the  res  gesta  of  the  rape.  When 
the  declaration  is  contemporaneous  with  the  offence,  it  is 
a  part  of  the  res  gesta,  and  then  the  particulars  of  the 
statement  are  to  be  received. 

On  the  other  side,  Mr.  Taylor  cites  only  four  cases,  — 
all  of  them  at  nisi  priiis,  —  one  a  well-known,  old,  and 
slight  memorandum  from  Skinner;  another  an  Irish  case; 
another  a  case  of  rape,  which  seems  to  be  misconceived  by 
Mr.  Taylor ;  and  the  fourth  a  case  which,  together  with  the 
one  from  Skinner,  has  been  subjected  more  than  once  to 
animadversion. 

The  part  which  cases  relating  to  rape  play  in  the  general 
discussions  about  the  res  gesta,  as  well  as  in  this  particular 
discussion,  and  the  misapprehensions  that  exist  as  to  them, 
make  it  desirable  to  give  some  account  of  them  at  this  point. 
In  several  respects  the  law  of  evidence  in  regard  to  rape  is 

from  the  practice  of  citing  these  as  authority.  Sir  Michael  Foster  long 
ago  said  :  "  Imperfect  reports  of  facts  and  circumstances,  especially  In 
cases  where  every  circumstance  welgheth  aomething  In  the  scale  of  jus- 
tice, are  the  bane  of  all  science  that  dependeth  upon  the  precedents  and 
examples  of  former  times."  Even  In  citing  a  considered  opinion,  it  has 
been  well  said  that,  "  to  abstract  the  reasoning  of  the  court  from  the 
facts  to  which  that  reasoning  is  meant  to  apply  .  .  .  has  a  tendency 
to  misrepresent  one  judge  and  to  mislead  anotlier."  "  It  is  not  right," 
says  another  judge,  "  to  repeat  opinions  hastily  formed,  and  delivered 
In  the  hurry  of  trial ;  and  the  practice  of  referring  to  them  has  occa- 
sioned all  the  confusion  that  the  enemies  of  our  law  object  to."  For 
more  of  the  same  import,  see  Joy  on  Confessions,  pp.  2  and  .3.  The  law 
of  evidence  and  the  criminal  law  have  inherited  the  chief  part  of  this 
confusion. 


BEDINGFIELD'S  CASE  223 

peculiar :  the  government  is  permitted  to  ask  the  woman  — 
its  own  witness  —  whether  she  made  a  complaint  at  or  near 
the  time  of  the  offence,  and  then  to  call  in  the  person  to 
whom  it  was  made,  and  have  that  person  testify  to  the  same 
fact.  This  appears  to  be  allowing  the  government  to  sup- 
port its  witness  by  evidence  that  she  said  the  same  thing 
before ;  but  the  evidence  is  really  put  in  by  way  of  supply- 
ing a  thing  which  in  this  particular  case  is  deemed  essential 
to  the  witness's  credit.^  It  used  to  be  laid  down  that  one 
could  always  support  his  witness  by  evidence  showing  that 
he  had  been  consistent  with  himself;  but,  as  a  general 
doctrine,  that  ceased  to  be  the  law  in  England  a  hundred 
years  ago.  How,  then,  shall  we  account  for  this  doctrine 
in  rape?  As  an  exception,  having  its  roots  far  back  in  the 
law.  In  Bracton,  fol.  147  (vol.  ii.  Twiss's  edition,  p.  483), 
as  touching  an  appeal  of  rape,  we  read :  "  When,  therefore, 
a  virgin  has  been  so  deflowered  and  overpowered  .  .  . 
forthwith  and  whilst  the  act  is  fresh,  she  ought  to  repair 
with  hue  and  cry  to  the  neighboring  vills,  and  there  display 
to  honest  men  the  injury  done  to  her,  the  blood,  and  her 
dress  stained  with  blood,  and  the  tearing  of  her  dress ;  and 
so  she  ought  to  go  to  the  provost  of  the  hundred  and  to 
the  sergeant  of  the  lord  the  king  and  to  the  coroners  and 
to  the  viscount,"  2  &c.  In  Hale's  Pleas  of  the  Crown, 
vol.  i.  pp.  638  and  633,  after  stating  that  in  an  appeal  of 
rape  it  is  necessary  that  the  woman  "  make  fresh  discovery 
and  pursuit  of  the  offence  and  offender,  otherwise  it  carries 
a  presumption  that  her  suit  is  but  malicious  and  feigned," 
it  is  added,  that  in  an  indictment  for  rape  the  woman  may 
be  a  witness,  but  that  her  credibility  must  be  left  to  the  jury 
upon  the  circumstances  of  the  case ;  "  For  instance,  if  the 
witness  be  of  good  fame,  if  she  presently  discovered  the 

^  In  R.  V.  Stroner,  1  C.  &  K.  650,  the  prosecution  was  compelled  by 
the  court  to  call  the  woman  to  whom  the  complaint  was  made,  although 
she  was  at  the  time  in  attendance  as  a  witness  for  the  accused. 

^  [See  also  Trfes  Ancien  Contumler  de  Normandie,  cap.  50,  De  puellis 
{circa  beginning  of  13th  century)  ;  Stat.  4  Edw.  I,  c.  2  ;  18  Vin.  Abr. 
155.  Tit.  Rape,  10 ;  1  Seld.  See.  Pub.  3.  case  7  ;  1  Reeves,  Hist.  Eng. 
Law,  200;   Com.  v.  Cleary,  172  Mass.  175.] 


224  LEGAL  ESSAYS 

offence,  made  pursuit  after  the  offender,  showed  circum- 
stances and  signs  of  the  injury,  .  .  .  these  and  the  like  are 
concurring  evidences  to  give  greater  probability  to  her 
testimony  when  proved  by  others  as  well  as  herself."  And 
Hale  goes  on  to  give  some  advice  as  to  the  trial  of  this  par- 
ticular offence,  founded  on  his  personal  experience  as  a 
judge,  which  has  been  repeated  in  the  books  for  two  hun- 
dred years :  "  It  is  true,"  he  says,  "  rape  is  a  most  detesta- 
ble crime,  and  therefore  ought  severely  and  impartially 
to  be  punished  with  death;  but  it  must  be  remembered 
that  it  is  an  accusation  easily  to  be  made  and  hard  to  be 
proved,  and  harder  to  be  defended  by  the  party  accused, 
though  never  so  innocent.  I  shall  never  forget  a  trial  be- 
fore myself  of  a  rape  in  the  county  of  Sussex,"  &c.  And 
again,  id.  vol.  ii.  p.  290,  "  But  of  all  difficulties  in  evidence 
there  are  two  sorts  of  crimes  that  give  the  greatest  diffi- 
culty, namely,  rapes  and  witchcraft,  wherein  many  times 
persons  are  really  guilty  .  .  .  and,  on  the  other  side,  per- 
sons really  innocent  may  be  entangled  under  such  pre- 
sumptions, that  many  times  carry  great  probabilities  of 
guilt."  The  main  part  of  these  statements  from  Hale  is 
repeated  in  the  later  books,  e.  g.,  in  Blackstone  and  in  Green- 
leaf.  Eussell  also  has  them,  in  1  Eussell  on  Crimes  (5th 
ed.),  867,  and  adds  the  rule  of  practice,  viz.,  "to  ask  the 
prosecutrix  whether  she  made  any  complaint,  and,  if  so, 
to  whom ;  and  if  she  mentions  a  person  to  whom  she  made 
complaint,  to  call  such  person  to  prove  that  fact,"  but  not 
the  particulars  of  the  complaint.  It  is  a  rule  founded  upon 
ancient  practice  and  upon  the  peculiar  nature  of  the  offence; 
it  has  also  been  applied  to  attempts  to  commit  rape  and 
assaults  with  intent  to  commit  it. 

By  a  natural  but  not  strictly  logical  extension  the  evi- 
dence was  allowed  in  one  or  two  cases  to  creep  in,  although 
the  prosecutrix  was  dead  or  unable  to  testify.  In  1840,  in 
K.  V.  Guttridge,  9  C.  &  P.  471,  Baron  Parke  refused  in 
such  a  case  to  admit  evidence  of  the  woman's  complaint, 
on  the  ground  that  such  evidence  is  only  to  be  received  in 


BEDINGFIELD'S  CASE  225 

confirmation  of  testimony  already  given  by  the  woman, 
unless  it  be  a  part  of  the  res  gesta,  as  it  was  not,  in  that 
case.  But  in  the  same  year,  in  E.  v.  Megson,  9  C,  &  P. 
420,  evidence  of  the  complaint  in  a  case  where  the  woman 
was  dead  had  come  in,  apparently  without  objection;  and 
it  was  only  afterwards,  when  it  was  sought  to  press  in  the 
particulars  of  the  complaint,  that  objection  was  made.  The 
government  then  urged  the  admission  of  the  particular 
statements,  as  being  a  part  of  the  res  gesta,  citing  Aveson 
V.  Kinnaird,  Thompson  v.  Trevanion,  and  E.  v.  Foster; 
citing  also  some  authorities  in  favor  of  receiving  the  par- 
ticulars generally  in  rape.  But  Eolfe,  B.,  ruled  it  out, 
remarking  that  there  is  a  wide  diiference  between  receiving 
such  statements  as  confirmatory  of  the  woman's  credibility 
where  she  is  a  witness,  and  receiving  them  in  such  a  case 
as  this,  where  she  is  not  a  witness,  and  where  the  complaint 
is  used  as  independent  evidence :  "  In  ordinary  cases  where 
she  is  a  witness,  evidence  of  her  complaint  is  admitted  to 
show  her  credit  and  the  accuracy  of  her  recollection.  Here 
the  object  was  to  put  it  in  as  independent  evidence  to  show 
who  committed  the  offence.  All  that  could  safely  be  re- 
ceived was,  I  think,  her  complaint  that  a  dreadful  outrage 
had  been  perpetrated  on  her."  It  is  evident  that  this  case 
is  but  a  slight  authority  in  support  of  the  doctrine  that 
evidence  of  the  complaint  is  admissible  at  all  when  the 
woman  does  not  testify.  No  objection  was  made  to  its 
admission  here,  and  the  only  discussion  was  upon  receiving 
the  particulars;  the  point  of  the  ruling  was  that  whatever 
may  be  said  for  receiving  the  particulars  in  the  usual  case, 
they  cannot  be  received  here.  Hardly,  if  at  all,  does  the  case 
of  B.  V.  Nicholas,  2  C.  &  K.  246,  add  anything  to  the  au- 
thority of  E.  V.  Megson  on  this  head ;  here  also  the  evidence 
came  in  without  objection.  These  are  the  only  English 
cases  that  we  know  of  which  give  any  support  to  the  exten- 
sion now  referred  to,  excepting  the  old  case  of  E.  v.  Brazier, 
which  is  disposed  of  satisfactorily  by  Baron  Parke  in  Gut- 
tridge's  case.    The  doctrine  in  principle  and  upon  authority, 

15 


226  LEGAL  ESSAYS 

in  England  as  well  as  here,  seems  to  be  correctly  stated  in 
3  Greenl.  Ev.  s.  213 :  "  The  complaint  constitutes  no  part 
of  the  res  gesta  (i.  e.,  it  does  not,  merely  as  being  a  fresh 
complaint)  :  it  is  only  a  fact  corroborative  of  the  testimony 
of  the  complainant;  and  where  she  is  not  a  witness  in  the 
case,  it  is  wholly  inadmissible."  ^ 

The  nature  of  this  evidence,  then,  is  merely  confirmatory 
of  a  particular  witness.  It  is  not  allowed  to  the  government 
as  a  privilege,  but  is  required  as  practically  essential  to  the 
government's  case,  so  far  as  it  rests  on  the  woman's  testi- 
mony. The  admission  of  it  at  all  is  peculiar  to  the  case 
of  rape,  and  one  or  two  related  offences  upon  women.  In 
regard  to  these  crimes  there  are  other  peculiarities;  e.g., 
that  of  allowing  the  defendant  to  show  as  a  part  of  his 
case  the  woman's  previous  immoral  relations  with  him,  and 
her  generally  unchaste  character,  and,  in  some  quarters,  her 
unchastity  with  specific  men  other  than  the  accused.  Steph. 
Dig.  Ev.  art.  134.  The  existence  of  these  various  doctrines 
in  the  case  of  rape  has  often  been  a  puzzle,  and  there  has 
been  the  effort,  usual  in  such  cases,  to  explain  the  exception 
by  general  principles  that  did  not  apply,  and  the  usual 
invention  of  new  principles,  and,  in  general,  the  usual 
inadvertence  to  the  circumstance  that  the  matter  in  hand 
was  merely  an  exception.  In  this  very  discussion  we  have 
Mr.  Taylor,  at  page  sixteen  of  his  pamphlet,  making  the 
allegation  that  the  same  rule  applies  to  "  all  crimes  of  vio- 
lence." "  It  is  idle,"  he  says,  "  to  try  to  escape  from  the 
authority  of  this  last  case,  E.  v.  Megson,  by  drawing  a  dis- 
tinction between  the  crime  of  rape  and  the  crime  of  murder, 
and  to  urge  that  statements  admissible  in  the  one  case  would 
be  inadmissible  in  the  other.  The  laws  of  England,  with 
all  their  faults,  are  not  quite  so  absurd  as  that.  All  crimes 
of  violence,  whether  murder,  wounding,  robbery,  or  rape, 
must  be  subject  to  the  same  rules  of  evidence."    He  adds, 

*  See  also  1  Russell  on  Crimes  (5th  ed.),  868.  [And  cf.  People  v. 
Sullivan,  104  N.  Y.  481,  where  the  complaint  was  excluded  on  the 
ground  that  It  was  so  long  delayed  that  the  "  principle  Justifying  Its 
reception  "  did  not  apply.] 


BEDINGFIELD'S  CASE  227 

that  no  doubt  declarations  by  the  woman  ravished  have  been 
more  frequently  tendered  in  cases  of  rape ;  but  that  is  only 
because  few  juries  would  be  willing  to  convict  of  rape, 
"  unless  immediately,  or  so  shortly  after  the  occurrence  as 
to  constitute  a  part  of  the  res  gestae,  a  complaint  had  been 
made  by  the  woman.  .  .  .  Still  the  law,  as  governing  other 
cases  of  violence,  would  be  the  same."  No  authority  is 
cited.  Similar  remarks  are  found  in  other  quarters,  e.  g., 
in  Eoscoe's  Criminal  Evidence  (8th  ed.),  26:  "The  same 
rule  applies  to  other  cases  as  to  rape;  namely,  that  where 
a  person  has  been  in  any  way  outraged,  the  fact  that  this 
person  made  a  complaint  is  good  evidence,  both  relevant 
and  admissible."  And  so  in  Stephen's  Dig.  Ev.  art.  8 
(giving  the  rule  a  wider  scope)  :  "  In  criminal  cases  the 
conduct  of  the  person  against  whom  the  offence  is  said  to 
have  been  committed,  and  in  particular  the  fact  that  he 
made  a  complaint  soon  after  the  offence  to  persons  to  whom 
he  would  naturally  complain,  are  deemed  to  be  relevant " 
(citing  only  a  case  of  rape).  It  will  be  observed  that 
Stephen's  article  not  only  extends  the  doctrine  in  rape  to 
other  cases  of  violence,  but  to  all  criminal  cases;  and  that 
it  does  not  confine  it  to  the  purpose  of  confirming  the  testi- 
mony of  a  witness. 

Now,  upon  what  authority  do  these  writers  proceed  ?  ^ 
It  is  believed  that  they  go  upon  no  reported  authority  what- 
ever {%.  e.,  no  English  authority),  except,  two  nisi  prius 
rulings  of  extremely  slight  value;  viz.,  K,  v.  Wink,  6  C. 
&  P.  397  (1834),  and  E.  v.  Eidsdale  (York  assizes,  1837), 
—  the  latter  being  a  case  which  is  only  found  in  a  note 

'  In  Mr.  Stephen's  case  one  may  surmise  that  he  was  in  this  in- 
stance misled  hy  the  method  in  which  his  work  was  composed.  In  the 
Indian  Evidence  Act  (where  he  was  makinfj  law),  art.  8  and  art.  157. 
he  had  made  complaints  admissible  generally,  and  had  also  made  the 
fact  admissible  in  some  cases,  that  a  witness  had  previously  said 
the  same  thing  now  testified  by  him.  His  Digest  of  Evidence  was 
originally  prepared  for  a  similar  purpose,  viz.  to  be  enacted  by  Parlia- 
ment, and  not  being  passed,  it  was  afterwards  adapted  to  the  purposes 
of  a  statement  of  the  law  as  It  exists.  Was  Mr.  Stephen,  perhaps,  in 
preserving  article  8  in  its  present  form,  led  inadvertently  into  a  state- 
ment which  is,  indeed,  conformable  to  his  theory  of  relevancy,  but 
is  not  the  rule  of  law? 


228  LEGAL   ESSAYS 

to  Starkie  on  Evidence.  It  was  first  printed  in  1842,  in 
Starkie's  third  edition,  vol.  i.  p.  352.  Wink's  case  was 
an  indictment  for  robbery.  The  prosecutor  was  shown  to 
have  made  a  fresh  complaint  (the  robbery  was  at  midnight, 
and  the  complaint  was  at  five  or  six  o'clock  the  next  morn- 
ing), and  to  have  mentioned  the  name  of  the  robber.  So 
far  no  objection  had  been  made.  "  Carrington,  for  the 
prosecution :  '  Does  your  Lordship  think  that  I  ought  to 
ask  him  what  name  he  mentioned  ? '  Patteson,  J. :  '  No, 
I  think  you  ought  not ;  but  when  you  examine  the  constable, 
you  may  ask  him  whether,  in  consequence  of  the  prosecutor's 
mentioning  a  name  to  him,  he  went  in  search  of  any  person, 
and,  if  he  did,  who  that  person  was.' "  Here,  then,  no 
question  was  raised,  and  there  was  no  ruling  upon  the  sub- 
ject. The  case  of  R.  v.  Ridsdale  (given  in  full)  is  this: 
"  On  an  indictment  for  shooting  at  the  prosecutor,  Patte- 
SON,  J,,  held  that  evidence  was  admissible  to  show  that  the 
prosecutor,  immediately  after  the  injury,  had  made  com- 
munication of  the  fact  to  another,  but  that  the  particulars 
could  not  be  given  in  evidence."  Here  we  have  no  facts 
given  us,  to  enable  us  to  judge  whether  the  reporter  is 
accurate  in  his  statement;  the  declaration,  we  are  told, 
was  "  immediately  after  the  injury " ;  it  may  then  have 
followed  it  so  quickly  as  to  be  fairly  a  part  of  the  res  gesta. 
These  two  cases,  it  is  believed,  comprise  all  there  is  in 
the  modern  English  books  in  the  nature  of  authority  *  to 
justify  the  notion  that  the  doctrine  in  rape  is  of  general 
application.  We  conceive  that  they  are  quite  inadequate 
to  support  that  proposition,  and  that  the  law  is  still  to  be 
laid  down  as  it  was  stated  above,  viz.  that  the  evidence 
in  question  is  only  confirmatory  of  the  witness,  and  is 
limited  to  the  case  of  rape.^  The  precise  point  recently 
came  up  in  a  well-considered  case  in  Virginia,  Haynes  v. 
The  Commonwealth,  28  Gratt.   942    (1877),  on  a  prose- 

'  We  make  nothing  of  the  citation  of  such  a  case  as  R.  v.  Wink, 
In  subsequent  cases  of  rape,  e.  g.,  in  E.  v.  Osborne,  merely  as  authority 
for  the  rejection  of  the  particulars  of  the  complaint. 

*  Baccio  r.  The  People,  41  N.  Y.  265. 


BEDINGFIELD'S  CASE  229 

cution  for  grand  larceny.  The  fact  of  a  fresh  complaint 
by  the  prosecutor  had  been  received  below ;  but  this  was 
now  held  bad.  At  p.  947  the  court  (Christian,  J.)  say: 
"  We  have  carefully  examined  all  the  authorities  referred 
to,  .  .  .  and  it  is  manifest  that  the  only  exception  (estab- 
lished by  well-considered  cases  and  reliable  text-writers) 
to  the  general  rule  excluding  the  statements  or  declarations 
of  parties  as  hearsay  evidence,  as  a  complaint,  is  the  excep- 
tion in  cases  of  rape.  .  .  .  But  .  .  .  the  evidence  is  con- 
fined to  the  new  complaint,  and  no  detailed  statement  of 
the  transaction  is  permitted  to  go  in  evidence.  .  .  .  Such 
statement  in  the  form  of  complaint  is  admissible,  though 
not  a  part  of  the  res  gestae.  But  we  think  the  exception 
must  be  confined  to  cases  of  rape.  ...  It  does  not  apply 
to  any  other  case,  unless  the  statement  or  declaration  comes 
within  the  res  gestae.  There  is  one  case  cited  by  the 
Attorney-General,  and  it  is  the  only  one  that  can  be  found, 
which  seems  to  hold  that  the  complaint  of  a  party  who  has 
been  robbed  may  be  given  in  evidence,  .  .  .  Rex  v.  Wink. 
There  is  no  case  which  we  can  find  which  affirms  the  doc- 
trines of  this  case.^  .  .  .  But  it  is  opposed  by  all  the  recent 
English  and  American  cases." 

Let  us  now  consider  how  the  rape  cases  are  dealt  with  in 
the  discussion  between  the  Lord  Chief  Justice  and  Mr. 
Taylor.  The  use  of  them  by  the  former  will  be  found  at 
page  21  of  his  pamphlet.  After  stating  and  illustrat- 
ing his  own  definition  of  the  res  gesta,  —  one  which  turns 
upon  the  inquiry  whether  "  all  action  on  the  part  of 
the  wrong-doer,  actual  or  constructive,  had  ceased,"  —  the 
Chief  Justice  declares  that  the  principle  of  this  rule  "  has 
been  embodied  in  the  established  practice  in  the  analogous 
case  of  a  prosecution  for  rape  " ;  the  fact  of  a  complaint, 
as  soon  as  possible  after  the  event,  "  is  deemed  essential 
to  the  credibility  of  the  story  of  the  prosecutrix,"  and,  when 
it  exists,  is  therefore  always  given  in  evidence,  but  the 

^  We  have  referred  to  one  more,  —  such  as  it  is,  —  R.  v.  Ridsdale. 


230  LEGAL   ESSAYS 

particulars  of  the  statement,  especially  as  they  affect  the 
alleged  assailant,  are  "  rigorously  excluded " ;  and  this 
"  because,  although  if  by  some  .  .  .  fortunate  circumstance 
the  woman  had  succeeded  in  escaping  from  the  grasp  of 
the  ravisher,  and  in  her  flight  were  invoking  assistance,  her 
statements  or  declarations  would  be  admissible,  yet  when 
the  accused  is  no  longer  actually  or  constructively  a  party 
to  what  takes  place,  he  cannot  be  affected  by  what  is  said 
in  his  absence."  This  seems  to  import  that,  in  the  Chief 
Justice's  conception,  the  declarations  are  receivable  in  the 
case  here  put,  of  a  woman  just  escaped,  fleeing  and  invoking 
assistance,  and  that  the  accused  in  such  a  case,  if  not  actu- 
ally present,  is  constructively  present.  He  does  not  seem 
here  to  make  anj-thing  turn  upon  the  question  of  what  the 
ravisher  is  doing  while  the  woman  is  thus,  in  her  flight, 
invoking  assistance,  —  whether  running  after  her  or  run- 
ning away.  But  he  goes  on  in  the  next  sentence  to  cite 
with  praise  the  case  of  E.  v.  Osborne,  1  C.  &  M.  622,  and 
a  dictum  of  Mr.  Justice  Cresswell  there,  which  appears, 
at  first  sight,  to  confuse  matters.  The  dictum  is  this : 
"  What  the  prosecutrix  said  at  the  time  of  the  committing 
of  the  offence  would  be  receivable  in  evidence,  on  the  ground 
that  the  prisoner  was  present  and  the  violence  going  on; 
but  if  the  violence  was  over  and  the  prisoner  had  departed, 
and  the  prosecutrix  had  gone  on  running  away,  crying  out 
the  name  of  the  person,  it  would  not  be  evidence."  The 
Chief  Justice  adds :  "  The  analogy  between  the  cases  of 
E.  V.  Osborne  and  E.  v.  Bedingfield,  as  regards  the  admis- 
sibility of  such  evidence,  appears  to  me  to  be  complete,  and 
the  ruling  of  the  learned  judge  in  E.  v.  Osborne  to  be 
directly  in  point.  We  have  here,  as  it  seems  to  me,  a  clear 
recognition  of  the  principle  by  which  the  admissibility  of 
declarations  in  criminal  cases  should  be  governed." 

Now,  is  it  so  clear  that  the  two  judges  go  upon  the  same 
principle?  Both,  indeed,  say  the  prisoner  must  be  present 
when  the  declaration  is  made ;  but  the  Lord  Chief  Justice 
introduces  the  fiction  of  a  "  constructive  presence,"  while 


BEDINGFIELD'S  CASE  231 

it  would  seem  from  Mr.  Justice  CresswelFs  language,  as 
reported,  that  he  had  in  mind  only  an  actual  presence; 
at  any  rate,  it  is  too  much  to  assume  that  he  contemplates 
anything  else.  As  to  the  language  of  Mr.  Justice  Cresswell 
in  regard  to  the  evidence  being  admissible,  "  on  the  ground 
that  the  prisoner  was  present,"  &c.,  it  seems  a  straining 
of  the  natural  construction  of  the  language  to  cite  this  in 
aid  of  any  theory  that  there  is  a  peculiar  doctrine  as  to 
admitting  declarations  in  a  criminal  case.  R.  v.  Osborne 
was  a  case  where  the  prosecutrix  made  a  complaint  "  very 
soon  after  "  the  commission  of  the  offence,  "  as  she  was  re- 
turning home."  These  are  all  the  indications  that  we  have 
as  to  the  precise  interval  of  time.  It  was  sought  to  get  in 
the  particulars  of  the  complaint  as  a  part  of  the  res  gesta; 
but  Mr.  Justice  Cresswell,  while  declaring  that  ''  the  dis- 
tinction is  rather  fine,"  ruled  that  the  statement  was  not 
a  part  of  the  res  gesta.  "  If  she  were  suffering,  a  surgeon 
could  examine  her,  and  the  state  of  her  feelings  would  be 
evidence;  but  what  she  said  about  another  person  would 
stand  on  very  different  ground."  Then  folloM^s  the  passage 
cited  by  the  Chief  Justice,  and  it  is  added :  ''  E.  v.  Wink 
is  a  direct  authority  in  point."  Now,  in  E.  v.  Wink  the 
offence  was  committed  at  twelve  o'clock  at  night;  the 
declaration  was  at  five  or  six  o'clock  the  next  morning; 
while  in  the  case  of  E.  v.  Osborne  there  was  also  nothing 
to  show  that  the  declaration  was  near  enough  in  time  to 
make  it  fairly  a  part  of  the  res  gesta.  That  Mr.  Justice 
Cresswell  should  have  cited  nothing  but  Wink's  case,  where 
the  interval  was  so  long  as  five  or  six  hours,  is  a  plain  indi- 
cation that  he  was  not  contemplating  any  such  nice  ques- 
tion of  time  as  that  which  presented  itself  in  Bedingfield's 
case.  As  to  the  dictum  about  the  woman  running  away, 
of  which  the  Chief  Justice  makes  so  much,  it  is  to  be  taken 
in  its  connection,  and  so  taken  it  is  but  an  off-hand  remark, 
well  enough  adapted  to  the  purpose  immediately  in  hand, 
but  not  to  be  pressed  too  far  or  to  be  nicely  reasoned  upon. 
It  may  fairly  be  denied  that  Mr.  Justice  Cresswell's  dictum, 


232  LEGAL   ESSAYS 

rightly  understood,  has,  in  reality,  any  legitimate  applica- 
tion whatever  to  so  close  a  case  as  Bedingfield's. 

It  is  apparent  from  the  language  of  the  Chief  Justice 
that  he  clearly  perceives  that  it  is  not  to  be  said  of  all  cases 
relating  to  rape,  that  the  declaration  is  to  be  excluded ;  that 
it  depends  upon  whether  the  declaration  is  or  is  not  in  a 
fair  sense  a  part  of  the  res  gesta.  In  K.  v.  Eyre,  2  F.  & 
F.  579  (1860),  it  was  admitted  by  Mr.  Justice  Bylea, 
apparently  as  being  a  part  of  the  res  gesta,  with  the  remark 
that  "  whatever  she  said  immediately  after  the  occasion,  and 
what  was  said  to  her  in  answer,  is  equally  evidence."  On 
the  other  hand,  in  E.  v.  Osborne  it  was  rejected  as  not 
being  a  part  of  the  res  gesta.  Now  this  rejection  of  the 
declaration  in  all  cases  where  it  is  not  a  part  of  the  res 
gesta  —  in  the  sense  of  the  ultimate  fact  to  be  proved  — 
is,  indeed,  the  usual  practice;  but  it  is  not  an  uncontested 
practice,  nor  yet  a  universal  one;  and  it  is  submitted  that 
the  Lord  Chief  Justice  intimates  too  much  in  saying  that 
"  the  particulars  of  the  statement  .  .  .  are  rigorously  ex- 
cluded." On  the  contrary,  it  was  the  opinion  of  Baron 
Parke,  emphatically  expressed,  that  the  particulars  should 
be  in  all  cases  received.  "  The  sense  of  the  thing  certainly 
is,"  he  said,  while  yielding  to  the  practice,  in  K.  v.  Walker, 
2  M.  &  R.  212,  "  that  the  jury  should  in  the  first  instance 
know  the  nature  of  the  complaint,  .  .  .  and  all  that  she 
then  said.  But  for  reasons  which  I  never  could  understand, 
the  usage  has  obtained,"  &c.  Stephen  (Digest  of  Evidence, 
Note  V.)  says  that  he  has  "  heard  Willes,  J.,  rule  that  they 
were  (admissible)  on  several  occasions,  vouching  Parke, 
B.,  as  his  authority.  .  .  .  Baron  Bramwell  has  been  in  the 
habit  of  late  years  of  admitting  the  complaint  itself.  The 
practice  is  certainly  in  accordance  with  common  sense." ' 
In  reading  this,  it  must  be  remembered  that  Mr.  Stephen 
is  now  in  a  position  to  keep  up  the  practice.    In  one  of  the 

'  [In  Connecticut  the  particulars  of  the  complaint  are  admitted. 
State  V.  Kinney,  44  Conn.  153.  So  In  bastardy  cases  of  the  declarations 
of  the  woman  in  travail,  Benton  v.  Starr,  58  Conn.  285.  Compare 
Harty  v.  Malloy,  67  Conn.  339.     Contra,  State  v.  Spencer,  73  Minn.  101.] 


BEDINGFIELD'S  CASE  .233 

latest  reported  cases  on  rape,  Eeg.  v.  Wood,  14  Cox  C.  C. 
46  (1877),  the  full  particulars  were  admitted  by  Baron 
Bramwell,  although  the  complaint  was  made  an  hour  and 
a  half  after  the  offence.  The  case  is,  however,  subject  to 
this  observation,  that  in  proving  the  fact  of  the  complaint 
the  prosecution  had  already  brought  out,  before  the  question 
came  up,  that  the  woman  gave  the  defendant's  name.^ 

Upon  what  ground  is  the  admission  of  such  declarations 
to  be  defended?  Not,  certainly,  upon  the  ground  that  they 
are  a  part  of  the  main  fact  in  issue.  The  answer  to  this 
question  involves  an  important  discrimination  too  little 
considered,  the  consideration  of  which  must  be  reserved 
for  another  article ;  viz.,  the  discrimination  between  declara- 
tions which  are  a  part  of  the  main  fact  in  issue,  and  those 
which  are  a  part  of  an  evidentiary  fact. 

II 

We  have  seen  that  the  general  rule  in  cases  of  rape  is, 
that  unless  the  complaint  be  made  contemporaneously  with 
the  outrage,  the  particulars  of  it  are  excluded;  that  this 
usage,  however,  is  not  universal ;  that  Baron  Parke  declared 
he  never  could  understand  the  reason  of  it;  and  that  other 
high  authorities,  on  the  bench  and  off,  have  advocated  the 
admission  of  these  particulars.  The  admissibility  of  them, 
as  a  general  doctrine,  cannot  be  rested  upon  the  ground  of 
their  being  a  part  of  the  res  gesia  of  the  rape ;  it  must  be 
urged  for  the  same  reason  that  the  fact  of  the  complaint  is 
admissible,  lor  they  are  the  very  complaint  itself;  that  fact 
or  transaction,  that  res  gesta,  they  constitute.  It  is  thought 
important  for  the  protection  of  a  person  accused  of  rape 
that  the  woman's  testimony  should  be  corroborated  by  show- 
ing that  she  made  fresh  complaint.  Surely  the  importance 
of  it,  for  the  defendant,  lies  in  corroboration  at  the  precise 
point  where  the  testimony  impinges  upon  him,  —  where 
it  purports  to  show  that  he  did  the  deed.    There  would  seem 

1  It  is  worth  noticing  that,  nevertheless,  the  accused  was  acquitted. 


234  LEGAL   ESSAYS 

great  reason  to  doubt  whether  anything  was  gained  for  the 
accused  by  introducing  the  mere  fact  of  a  complaint,  and 
then  leaving  the  jury  to  their  surmises,  with  a  reasonable 
certainty  that  they  will  connect  the  accused  with  the  com- 
plaint, —  instead  of  giving  them  full  opportunity  to  com- 
pare the  two  stories  of  the  woman,  under  due  caution  as 
to  the  purpose  of  now  giving  in  evidence  her  former  story, 
and  the  limited  way  in  which  alone  they  should  use  it.  But 
that  which  it  is  now  specially  desired  to  point  out  is  the 
thing  before  mentioned,  viz.,  that  whenever  the  fact  of  a 
complaint  is  admissible,  the  things  that  were  said  in  making 
the  complaint  may  be  regarded  as  the  constituent  parts  of 
that  fact,  —  of  that  res  gesta.  Is,  then,  this  phrase  properly 
to  be  applied  to  an  evidentiary  fact,  or  is  it  to  be  limited 
to  the  ultimate  facts  in  issue?  We  shall  be  better  able  to 
answer  this  question  a  little  further  on.  It  will  be  enough 
tit  this  point  to  call  attention  to  the  form  in  which  Stephen 
has  laid  down  the  doctrine  of  the  res  gesta,^  in  his  Digest 
of  Evidence,  Art.  8 :  "  Whenever  any  act  may  be  proved, 
statements  accompanying  and  explaining  that  act  made 
by  or  to  the  person  doing  it,  may  be  proved  if  they  are 
necessary  to  understand  it."  It  will  be  perceived  that  this 
statement  is  wide  enough  to  cover  any  act  that  is  an  evi- 
dentiary fact  as  well  as  others.  It  is  also  worth  observing 
that  the  author  has  here  preserved  nearly  the  form  in  which 
Baron  Parke  expressed  the  principle  when  he  said,  in  a 
passage  quoted  in  Stephen's  Note  V.,  "  Where  any  facts 
are  proper  evidence  upon  an  issue,  all  oral  or  written  declar- 
ations which  can  explain  such  facts  may  be  received  in 
evidence."  We  shall  give  reasons  hereafter  for  thinking 
that  Stephen's  statement,  while  in  one  or  two  respects  too 
narrow,  is  in  the  particular  now  under  consideration  not 
too  wide. 

We  have  still  to  notice  the  manner  in  which  Mr.  Taylor 
deals  with  the  subject  of  the  rape  cases.     He  treats  only 

*  The  phrase  Itself  is  not  used  Id  the  text  of  bis  work. 


BEDINGFIELD'S  CASE  235 

of  the  case  of  R.  v.  Megson,  9  C.  &  P.  420 :  we  have  already 
referred  to  this  case  as  one  where  evidence  of  the  woman's 
complaint  was  received  without  remark,  although  at  the 
time  of  the  trial  she  was  dead.^  The  complaint  had  been 
made  "  as  soon  as  she  returned  home  " ;  the  assault  was  com- 
mitted "  very  early  in  the  morning,"  and  the  woman  re- 
turned home  at  about  five  o'clock,  but  the  precise  length 
of  the  interval  between  these  two  events  does  not  appear. 
An  effort  being  made  by  the  government  to  get  in  the  par- 
ticulars of  the  complaint,  the  judge,  after  argument, 
rejected  the  evidence,  remarking  in  substance,  that  however 
it  might  be  as  to  admitting  such  evidence  in  the  ordinary 
case,  yet  here,  where  the  witness  is  dead,  "  the  object  is 
to  give  in  evidence  the  particulars  of  the  complaint  as  inde- 
pendent evidence,  with  the  view  of  showing  who  were  the 
persons  who  committed  the  offence.  All  that  could  safely 
be  received  was,  I  think,  her  complaint  that  a  dreadful 
outrage  had  been  perpetrated  upon  her."  This  last  sen- 
tence appears  to  be  merely  saying  that  it  was  not  safe  to 
receive,  in  this  case,  anything  more  than  what  was  already 
in,  viz.,  the  fact  of  the  complaint.  But  see  how  Mr.  Taylor 
construes  it:  "Here  then,"  he  says  (p.  16),  "we  have  the 
deliberate  opinion  of  a  sound  lawyer  that  for  the  purpose 
of  disproving  consent,  as  contradistinguished  from  the  ob- 
ject of  establishing  identity,  the  woman's  statements  may 
be  received.  They  relate  to  a  matter  respecting  which  the 
speaker  is  not  open  to  any  mistake.  They  are  —  if  uttered 
immediately  or  very  shortly  after  the  event  the  natural 
outpourings  of  a  spirit  humbled  by  a  degrading  assault; 
they  are  the  usual  expression  of  feelings  in  relation  to  an 
occurrence  or  res  which  has  just  happened,  and  which  occur- 
rence is  the  subject  of  judicial  inquiry;  and  as  such  they 
are  original  evidence,  and  indisputably  admissible."  And 
then  he  makes  the  application  of  this  case  to  the  one  under 
discussion  which  we  have  previously  pointed  out,  viz.,  that 

I  Supra,  p.  225. 


236  LEGAL   ESSAYS 

if  the  inquiry  had  been  whether  it  was  Bedingfield  or  some 
other  man  who  killed  Mrs.  Eudd,  instead  of  being  whether 
it  was  he  or  the  deceased  herself,  the  judge  should  have 
admitted  all  the  statement  except  the  name  of  Bedingfield, 
making  it  run,  "  Oh,  aunt,  see  what  has  been  done  to  me," 
—  the  words  in  italics  being  substituted  by  the  witnesses, 
instead  of  the  words  "  Bedingfield  has  done."  That  phrase 
would  be  suppressed  "  because,  first,  it  had  nothing  to  do 
with  the  question  how  her  throat  came  to  be  cut;  and  next, 
it  was  a  matter  in  which  the  most  truthful  person  could 
easily  have  been  mistaken." 

Now,  has  not  Mr.  Taylor  misunderstood  the  case  ?  Baron 
Eolfe,  it  is  submitted,  did  not  mean  to  receive  the  par- 
ticulars of  the  statement  here  for  any  purpose,  but  only 
the  fact  of  the  complaint ;  nor  to  express  approval  of  their 
admission  in  any  case  whatever.  Mr,  Taylor  then  seems 
to  be  in  error:  1.  In  conceiving  of  this  evidence  of  the 
woman's  complaint  as  being  admissible  in  any  case  but  that 
of  rape  and  a  few  related  offences  upon  women ;  2.  In 
supposing  it  to  be  admissible  even  then  for  "  disproving 
consent,"  —  Baron  Eolfe  in  this  very  case  accurately  states 
it  as  being  "  to  show  her  credit  and  the  accuracy  of  her 
recollection  " ;  3.  In  supposing  that  if  the  particulars  of 
the  statement  are  to  be  given  at  all,  the  name  can  properly 
be  withheld;  it  seems  very  odd  to  say  that  the  naming  of 
the  person  whom  the  woman  charged  with  cutting  her 
throat  "has  nothing  to  do  with  the  question  of  how  her 
throat  came  to  be  cut " ;  and  as  for  the  danger  of  mistake, 
that  consideration  goes  to  the  eifect  of  the  evidence;  in 
such  cases  (e.g.,  in  the  case  of  dying  declarations,  where 
there  is  often  great  danger  of  error),  the  particulars  of  the 
statement,  when  receivable  at  all,  are  to  be  received  in  an 
unmutilated  form;  and,  4.  Mr.  Taylor  would  seem  to  be 
in  error  in  supposing  that  on  the  facts  of  such  a  case  as 
E.  V.  Megson,  the  fact  or  the  details  of  the  complaint  can 
come  in  as  part  of  the  res  gesta  of  the  rape,  or  that  Baron 
Rolfe  was  considering  their  admissibility  on  that  ground. 


BEDINGFIELD'S  CASE  237 

So  much  for  the  discussion  of  the  rape  cases  in  Mr.  Taylor's 
pamphlet. 

111.  Neither  the  Chief  Justice  nor  Mr.  Taylor  has  under- 
taken to  inquire  where  this  Latin  phrase  res  gesta  came 
from,  or  to  trace  its  history,  or  to  note  the  various  meanings 
of  which  it  is  susceptible.  Something  of  that  sort  might 
help  us. 

The  Chief  Justice  does  indeed  touch  upon  this  line  of 
inquiry  at  p.  10  of  his  pamphlet,  where,  after  conceding, 
in  the  course  of  his  criticisms  upon  the  old  case  of  Thomp- 
son V.  Trevanion,  that  Lord  Ellenborough  had  once  said 
of  it  that  the  wife's  declarations  there  "  were  admitted  as 
part  of  the  res  gestae,"  he  goes  on :  "  As  to  which  all  I  can 
say  is  that  the  report  in  Skinner  does  not  say  a  word  of  the 
sort,  and  I  am  mistaken  if  the  term  itself  is  not,  at  least 
so  far  as  our  law  is  concerned,  of  much  more  modern  coinage 
than  the  time  of  Lord  Holt";  but  he  pursues  the  matter 
no  further.  At  another  place  he  intimates  his  opinion  as 
to  the  value  of  the  phrase,  in  speaking  of  it  as  ''  this  vague, 
indefinite,  and,  I  cannot  help  thinking,  much  abused  term 
of  '  res  gestae/  which  lawyers  persist  in  using  as  though 
there  were  no  English  equivalent  capable  of  expressing  its 
meaning,  —  some  of  them,  I  imagine,  for  the  sake  of  the 
indefinite  latitude  which  it  leaves  for  the  admission  of  evi- 
dence in  each  particular  case;  others  because  it  avoids  the 
necessity  of  laying  down  any  general  principle  determining 
such  admissibility."  So  Stephen,  in  his  Note  V.  to  the 
Digest  of  Evidence,  refers  to  the  phrase  we  are  considering, 
"  The  phrase  '  res  gestae,'  which  seems  to  have  come  int( 
use  on  account  of  its  convenient  obscurity  " ;  and  he  add 
some  instructive  passages  from  the  colloquy  of  the  judge, 
in  an  English  case :  ^  "  How  do  you  translate  res  gestae  ?  * 
said  Bosanquet,  J.,  "  gestae  by  whom  ?  "  "  The  plaintiff  ii. 
error,"  answered  Starkie,  who  was  arguing,  "  must  say  b} 

1  Why  do  our  reporters  wholly  omit  the  judicial  interpellation  an<v' 
the  dialogue  that  often  take  place  during  argument?  The  English  habit 
of  preserving  something  of  this,  adds  not  a  little  to  the  vivacity  of  the 
report,  and  often  helps  to  a  correct  apprehension  of  the  case. 


238  LEGAL  ESSAYS 

all  the  world."  "The  acts,"  added  Baron  Parke,  "by 
whomsoever  done,  are  res  gestae,  if  relevant  to  the  matter 
in  issue.     But  the  question  is,  what  are  relevant?"^ 

This  phrase,  in  one  or  another  form,  —  res  gesta,  res  acta, 
res  gestae,  —  was  familiar  in  classical  Latin  literature,  as 
one  may  see  by  any  dictionary.  It  is  found,  also,  in  the 
Corpus  Juris.  The  form  res  acta  is  not  often  used  in  our 
law  nowadays,  except  in  the  maxim  Res  inter  alios  acta;  but 
at  one  time,  in  this  country  at  any  rate,  it  seems  to  have 
been  in  some  degree  used  interchangeably  with  the  other 
forms;  thus,  3  Dane's  Abridgment,  530  (1823)  :  "They 
are  the  res  acta,  or  transactions  at  the  time,  in  the  usual 
course  of  business  when  a  lawsuit  is  not  expected  " ;  and 
so,  p.  306  :  "  Res  acta.  —  The  last  head  included  not  only 
the  res  acta,  but  (&c.).  Hearsay  is  often  given  in  evidence 
as  a  part  of  the  res  gesta,  ...  as  (in  case  of  a  bankrupt 
leaving  home)  his  declarations  at  the  time  he  left  his  home 
are  a  part  of  the  res  acta."  As  to  the  maxim  Res  inter  alios 
acta,  it  is  taken  from  the  Roman  law,  but  is  not  to  be  found 
there  in  its  present  shape.^  It  is  from  Cod.  vii.  60.  1, 
where  it  reads :  Inter  alios  res  gestas  aliis  non  posse  facere 
praeiudicium  saepe  constitutum  est.^  Whatever  technical 
meaning  the  phrase  res  acta,  as  distinguished  from  res 
gesta,  may  have  had,  in  any  connection,  in  the  Roman  law, 
it  has  vanished  in  our  employment  of  the  maxim  res  inter 
alios,  and  we  may  dismiss  that  form  of  the  expression  — 
res  acta  —  from  further  consideration.^ 

'  Wright  V.  Doe  d.  Tatham,  7  A.  &  E.  313  ;   at  p.  355. 

2  Sandars's  Institutes  (4th  ed.),  433. 

"  Compare  the  maxim  from  Dig.  xliv.  2.  1 ;  Quum  res  inter  alios 
iudicatae  nullum  aliis  praeiudicium  faciant. 

*  The  word  acta  in  classical  Latin  had,  no  doubt,  sometimes  a 
technical  meaning,  related  to  that  of  actio  and  agere  In  their  applica- 
tion to  legal  proceedings.  Rem  ayere,  rem  a(/i,  res  acta  est,  were 
phrases  that  expressed  litigation  or  the  end  of  It ;  and  so  the  phrase 
rem  actam  agis.  But  the  term  was  also  used  in  a  sense  not  technical, 
and  nearly,  if  not  quite,  the  same  as  that  of  the  word  gesta.  The 
maxim  Res  inter  alios  acta,  In  its  relation  to  the  law  of  evidence,  is 
the  subject  of  a  valuable  article  by  Mr.  C.  H.  Barrows  in  14  Am.  Law 
Rev.  350.  Stephen  has  made  much  of  this  maxim  in  his  Digest  of 
Evidence,  but  it  would  seem  that  bis  application  of  it  is  quite  inde- 
fensible. 


BEDINGFIELD'S  CASE  239 

The  phrase  res  gesta  is  found  only  a  few  times  in  the 
Corpus  Juris.  One  passage  has  already  been  quoted  from 
the  Code.  In  the  Digest,  i.  18.  6.  1,  we  read :  "  Veritas 
rerum  erroribus  gestarum  non  vitiatur " ;  and  in  xxviii. 
4.  4. :  "  Si  quasdam  tahulas  in  publico  depositas  abstulit, 
atque  delevit,  qv/ie  iure  gesta  sunt,  praesertim  quum  ex 
ceteris  tabulis,  quas  non  abstulit,  res  gesta  declaretur,  non 
constituentur  irrita."  The  meaning  of  the  term  seems  to 
have  been  quite  untechnieal ;  it  imported  simply  a  fact, 
a  transaction,  an  event.  The  plural  sometimes  indicated 
not  so  much  the  plural  of  the  English  equivalent  —  facts, 
transactions  —  as  the  details  or  particulars  of  which  a 
single  fact  or  transaction  might  be  composed.  It  would 
seem  that  either  form  was  quite  legitimately  used  as  mean- 
ing what  we  should  express  by  the  singular  form,  —  an 
occurrence,  a  transaction.^ 

Now,  how  came  this  term  into  our  law  ?  ^     The  first 

'  Doubtless  there  were  shades  of  special  meaning  to  this  phrase 
in  some  connections  ;  it  sometimes  imported  exploits,  great  deeds,  pub- 
lic affairs,  and  so  the  ordinary  subject-matter  of  history.  A  passage 
from  Varro,  De  Lingua  Latina,  Lib.  vi.  77,  is  preserved  in  our  common 
dictionaries,  which  Indicates  neatly  a  special  meaning  of  gererc:  "  Ter- 
tium  gradum  agendi  esse  dicunt,  ubi  quid  faciant ;  in  eo  propter 
similitudinem  agendi  et  faciundi  et  gerundi  quidam  error  his,  qui 
putant  esse  unum.  Potest  enim  aliquid  facere  et  non  agere,  ut  poeta 
facit  fabulam,  et  non  agit ;  contra  actor  aglt  et  non  facit,  et  sic  a 
poeta  fabula  fit,  non  agitur ;  ab  actore  agitur  non  fit.  Contra  imperator 
quod  dicitur  res  gerere,  in  eo  neque  facit,  neque  agit,  sed  gerit,  id  est 
sustinet,  translatum  ab  his  qui  onera  gerunt,  quod  hi  sustinent."  And 
so,  perhaps,  there  is  a  glance  at  this  distinction  in  Dig.  i.  19.  1  :  "  Quae 
acta  gestaque  sunt  a  Procuratore  Caesarls,  sic  ab  eo  comprobantur,  atque 
si  a  Caesare  gesta  sunt." 

2  ["The  use  of  the  Latin  phrase  res  gesta,  in  order  to  say  that 
hearsay  is  sometimes  admissible  on  account  of  the  closeness  of  its 
connection  with  an  admissible  fact  or  transaction,  seems  to  run  back 
for  about  a  hundred  years.  The-  plural  form  (res  gestae)  is  later. 
Both  mean  the  same  thing.  Probably  neither  expression  is  a  necessary 
or  really  useful  one;  and  the  plural  phrase  has  certainly  contributed 
to  a  mistaken  impression  that  hearsay  is  always  admissible  if  only  it 
be  evidential  without  requiring  trust  in  the  credit  of  the  declarant. 
It  Is  accordingly  often  said  that  the  res  gestae  of  a  fact  are  its 
'  surrounding  circumstances,'  and  that  a  declaration,  a  verbal  act,  is 
as  good  as  any  other,  when  a  part  of  such  circumstantial  facts.  Such 
statements,  however,  forget  the  real  conception  which  is  at  the  bottom 
of  this  Latin  phrase,  and  overlook  the  significance  of  all  the  exceptions 
to  the  hearsay  rule.  Whether  the  law  ought  to  be  brought  into  the 
shape  that  is  Intimated  above,  and,  if  so,  how,  —  are  questions  very 
proper  to  be  considered.     But  the  endeavor  to  ascertain  just  what  our 


240  LEGAL  ESSAYS 

instance  of  the  use  of  it,  which  the  writer  has  observed, 
is  in  a  brief  discussion  over  a  point  of  evidence  in  Home 
Tooke's  trial  for  high  treason,  25  Howell's  State  Trials, 
440  (1794).  A  letter  from  a  certain  society  had  been  sent 
to  an  association  with  which  Tooke  was  connected,  declining 
a  previous  proposal  from  the  latter;  Erskine,  for  the  de- 
fence, was  examining  a  witness  as  to  the  reasons  for 
declining,  given  by  members  of  the  first  society  in  their 
debates  at  the  time  of  their  vote ;  Garrow,  for  the  govern- 
ment, interrupted  and  objected  to  stating  these  reasons,  — 
Tooke,  he  said,  was  n't  a  member  of  the  first  society,  and 
their  letter  must  be  left  to  speak  for  itself :  "  That  letter 
your  lordships  have  received  .  .  .  probably  upon  the  ground 
that  as  it  is  an  answer  to  an  act  which  is  charged  against 
the  prisoner,  it  is  fit  to  be  received  as  part  of  the  res  gesta 
upon  the  subject."  The  expression  does  not  occur  again 
in  that  case.  Nor  is  it  once  found  in  the  great  case  of 
R.  V.  Hardy,  24  Howell's  State  Trials,  199,  concluded  only 
a  few  days  before  Tooke's  case  was  taken  up,  —  although 
there  was  repeated  discussion  over  the  thing  itself,  which, 
in  later  days,  was  called  by  this  name:  e.g.,  at  p.  453, 
Lord  Chief  Justice  Eyre  says :  "  In  the  cases  of  Dammaree 
and  Lord  George  Gordon  the  cry  of  the  mob  at  the  time 
made  a  part  of  the  fad,  of  the  transaction  " ;  and  in  the 
discussions  as  to  admitting  the  declarations  of  co-con- 
spirators, the  expression  used  is  always  that  "  they  must 
be  a  part  of  the  transaction  itself,"  and  the  like.  In  neither 
of  the  cases  here  cited  by  Lord  Chief  Justice  Eyre  is  the 
Latin  phrase  used,  nor,  as  is  said  before,  so  far  as  the 
writer  is  advised,  has  it  been  found  in  any  case  before 
the  year  1794. 

law  is  and  how  it  came  about  is  the  matter  now  in  hand.  If  a  change 
be  desirable,  it  is  also  desirable  that  it  should  be  made  with  a  clear 
understanding  of  the  existing  scheme. 

"  This  particular  topic  is  further  perplexed  by  referring  to  it  two 
classes  of  cases  (relating  to  agency  and  rape)  that  do  not  belong  here; 
and  also  by  a  mistaken  treatment  of  certain  other  classes  of  cases 
(e.g.,  those  relating  to  bankruptcy)  which  are  more  closely  connected 
with  the  subject.  Some  of  these  will  be  added  here."  Thayer's  Cas. 
Ev.  (2d  ed.)  641,  n.] 


BEDINGFIELD'S  CASE  241 

The  phrase  is  not  found  again  until  1801,  Hoare  v. 
Allen,  3  Esp.  276,  where,  in  an  action  for  the  seduction 
of  the  plaintiff's  wife,  it  was  contended  by  the  defendant 
that  the  plaintiif  had  connived  at  his  wife's  elopement  by 
letting  her  go  out  with  slight  attendance  when  he  knew 
that  the  defendant  intended  to  "  protect  her "  if  she  left 
her  husband,  and  the  plaintiff  sought  to  explain  this  by 
evidence  that  he  let  her  go  on  the  belief  that  she  was  going 
to  her  uncle's,  and  offered  evidence  that  she  told  him  so 
at  the  time  of  going.  Erskine,  for  the  plaintiff,  urged  the 
admission  of  this  on  the  ground  that  it  was  evidence,  not 
to  prove  her  real  intention,  but  the  plaintiff's  belief  as  to 
her  intention ;  and  Lord  Kenyon  admitted  it,  although  with 
doubts :  "  As  some  of  the  Judges,  on  a  motion  for  a  new 
trial,  thought  this  was  a  part  of  the  res  gesta  and  ought 
to  be  admitted,  he  should  admit  it."  This  was  one  of  Lord 
Kenyon's  latest  rulings.  In  one  of  the  early  cases  of  his 
successor  we  find  the  same  phrase;  in  Robson  v.  Kemp, 
4  Esp.  233  (1802),  in  rejecting  the  dechiration  of  a  bank- 
rupt made  after  the  alleged  act  of  bankruptcy,  offered  to 
show  that  the  intent  of  the  act  was  fraudulent.  Lord  Ellen- 
borough  said :  "  Where  the  declaration  of  the  bankrupt  is 
part  of  the  res  gesta,  ...  it  may  be  evidence." 

In  1801  Peake's  "Law  of  Evidence"  was  published; 
the  phrase  does  not  occur  in  that,  nor  is  it  in  Buller,  or 
Gilbert,  or  any  of  the  other  few  books,  before  this  century, 
in  which  the  subject  of  evidence  is  dealt  with.  The  first 
treatise  in  which  it  is  found,  so  far  as  the  writer  has  ob- 
served, is  Evans's  Appendix  to  Pothier  on  Obligations, 
printed  in  1806;  in  vol.  ii.  p.  284,  Evans  says:  "In  ques- 
tions of  fraud  or  hona  fides,  an  adequate  judgment  can, 
in  general,  only  be  formed  by  having  a  perfect  view  of  the 
whole  transaction,  which  of  course  includes  the  conversation 
which  forms  a  part  of  it;  and,  according  to  the  phrase 
usually  applied  to  this  subject,  the  language  which  is  used 
on  any  occasion  forms  a  part  of  the  res  gesta."  This  pas- 
sage is  interesting  as  indicating  that  the  phrase  was  in 

16 


242  LEGAL  ESSAYS 

common  use  in  1806.  The  circumstance  that  the  writer 
thought  it  proper  to  state  that  the  phrase  was  thus  "  usually 
applied,"  may  perhaps  justify  the  surmise  that  it  was  not 
a  usage  of  long  standing.  It  may  be  observed  that  in 
Fairlie  v.  Hastings,  10  Ves.  133  (1804),  the  leading  case 
in  regard  to  the  admissions  of  an  agent  as  affecting  his 
principal,  the  phrase  is  not  found ;  such  a  case  would  pretty 
surely  have  developed  the  use  of  this  term  in  later  days, 
as  one  may  see  by  the  notes  of  the  American  editor. 

At  p.  286  Evans  makes  interesting  reference  to  a  case 
which  has  since  attracted  much  attention,  —  one  of  those 
now  relied  upon  by  Mr.  Taylor,  —  and  expresses  his  dis- 
approval of  it:  "A  case  of  Avison  v.  Lord  Kinnaird  (which 
will  most  probably  not  be  included  in  a  regular  report  before 
this  discussion  has  passed  the  press),"  &c.  This  case,  de- 
cided in  February,  1805,  is  found  in  6  East,  188,  and  here 
the  phrase,  in  the  plural  form,  res  gestae,  is  freely  used 
by  counsel ;  Lord  EUenborough  also,  in  addressing  counsel, 
uses  it  once.  It  was  not  long  before  this  case  had  crossed 
the  water  and  appeared  in  our  courts,  bringing  with  it  the 
Latin  term;  in  Bartlett  v.  Delprat,  4  Mass.  703  (1808), 
Story,!  fQj.  the  plaintiff,  in  opposing  the  admission  of  cer- 
tain declarations,  classifies  the  cases  where  "  the  declara- 
tions of  persons  are  admissible,"  and  includes  as  one  class 
"  declarations  making  part  of  the  res  gestae,'^  citing  and 
stating  the  case  of  Aveson  v.  Kinnaird.  Prescott,  on  the 
other  side,  presses  that  the  declarations  in  this  case  "  come 
strictly  within  the  exception  .  .  .  which  comes  under  the 
description  of  a  part  of  the  res  gestae,  and  are  within  the 
case  of  Aveson  v.  Kinnaird;  they  were  made  at  the  time 
of  the  act  done,  and  they  ought  to  go  to  explain  it."  Story, 
in  reply,  insists  that  "  these  declarations  were  not  made 
at  the  time  .  .  .  but  long  afterwards,  and  can  in  no  sense 
be  considered  as  part  of  the  res  gestae."  The  court  do  not 
use  the  phrase.    This  is  the  first  appearance  of  it  in  Massa- 

^  Afterwards  Mr.  Justice  Story. 


BEDINGFIELD'S  CASE  243 

chusetts.  In  Swift's  "  Digest  of  the  Law  of  Evidence  in 
Civil  and  Criminal  Cases,"  —  the  earliest  American  trea- 
tise, —  printed  in  1810,  the  phrase  occurs,  at  p.  127,  in  stat7 
ing  when  the  admission  of  an  agent  is  receivable  as  against 
his  principal :  "  What  is  said  by  the  agent  relating  to  such 
transaction,  while  acting  under  such  authority,  will  be 
received  as  evidence  against  the  principal,  as  part  of  the 
res  gestae." 

The  phrase,  then,  was  fairly  afloat  in  the  law  of  evidence 
soon  after  the  beginning  of  this  century;  but  there  are 
signs  that  it  was  not  altogether  regarded  with  favor. 
Phillipps's  excellent  treatise  on  evidence  —  so  great  an 
advance  on  anything  that  had  preceded  it  —  was  published 
in  1814;  in  it  (vol.  i.  p.  302)  he  said:  "Hearsay  is  often 
admitted  in  evidence  as  part  of  the  res  gesta;  the  meaning 
of  which  seems  to  be  that  where  it  is  necessary  ...  to 
inquire  into  the  nature  of  a  particular  act  and  the  intention 
of  the  person  who  did  the  act,  proof  of  what  the  person  said 
at  the  time  of  doing  it  is  admissible  evidence  for  the  purpose 
of  showing  its  true  character."  But,  having  thus  intro- 
duced the  phrase,  he  struck  it  out  in  the  fourth  edition 
(1819),  and  substituted  for  it  the  English  word  "trans- 
action " ;  this  word  he  retained  through  three  other  editions, 
and  until  he  associated  Mr.  Amos  with  himself  in  getting 
out  the  eighth  edition,  in  1838 ;  in  that  edition,  as  a  part 
of  most  extensive  changes,  the  Latin  term  in  the  plural 
form,  res  gestae,  was  placed  in  the  text,  and  it  has  remained 
there  since.  Starkie  published  liis  book  in  1824,  and  then 
and  always  used  the  phrase  res  gestae.  As  to  the  later 
leading  treatises  of  Greenleaf,  Taylor,  and  Wharton,  it  is 
unnecessary  to  say  that  they  faithfully  reflect  the  cases 
in  using  this  term;  but  a  marked  exception  is  found  in 
Stephen,  who  dispenses  entirely  with  it  in  his  Digest  of 
Evidence. 

If  it  be  true,  as  it  seems  to  be,  that  the  phrase  first  came 
into  use  in  evidence  near  the  end  of  the  last  century,  one 
would  like  to  know  what  started  the  use  of  it  just  then. 


244  LEGAL  ESSAYS 

That  is  matter  for  conjecture  rather  than  opinion.  It  would 
seem  probable  that  it  was  called  into  use  mainly  on  account 
of  its  "  convenient  obscurity."  Questions  of  evidence,  and 
particularly  questions  relating  to  hearsay,  were  much  can- 
vassed in  the  English  courts  at  the  end  of  the  last  century 
and  the  beginning  of  this;  instead  of  continuing  to  be 
dealt  with  as  being,  in  a  considerable  degree,  matters  of 
usage,  differing  in  the  different  circuits,  such  questions  were 
now  more  carefully  considered  at  Westminster.  This  was, 
no  doubt,  promoted  by  the  practice  of  reporting  volumes 
of  cases  at  nisi  prius,  begun  by  'Espinasse  in  1794,^  and 
continued  pretty  regularly  by  Peake,  Campbell,  and  others. 
This  practice  was  adopted  with  a  main  view,  as  'Espinasse 
tells  us  in  his  preface,  to  preserve  the  rulings  in  points  of 
evidence,  —  formerly  only  to  be  learned  "  by  a  close  and 
constant  attendance  on  the  Courts  of  Nisi  Prius."  The 
law  of  hearsay  at  that  time  was  quite  unsettled;  lawyers 
and  judges  seem  to  have  caught  at  the  term  res  gesta,"^  — 
a  phrase  which,  as  we  before  said,  served  for  the  same  thing 
which  had  been  expressed  by  L.  C.  J.  Eyre,  in  1794,  by  the 
term  "  the  transaction,"  "  the  fact,"  —  which  also  might 
mean  "  a  business,"  as  one  would  speak  of  the  business 
about  which  an  agent  was  employed,  —  which  was  a  foreign 
term,  a  little  vague  in  its  application,  and  yet  in  some 
applications  of  it  precise.  —  they  seem  to  have  caught  at 
this  expression  as  one  that  gave  them  relief  at  a  pinch. 
They  could  not,  in  the  stress  of  business,  stop  to  analyze 
minutely;  this  valuable  phrase  did  for  them  what  the 
"  limbo  "  of  the  theologians  did  for  them,  what  a  "  catch- 
all "  does  for  a  busy  housekeeper  or  an  untidy  one,  —  some 
things  belonged  there,  other  things  might,  for  purposes  of 
present  convenience,  be  put  there.  We  have  seen  that  the 
singular  form  of  phrase  soon  began  to  give  place  to  the 

>  'Espinasse  published  a  single  volume  In  1794 ;  Peake's  Cases 
followed  In  1795 ;  and  then  'Espinasse  began  his  series  (republishing 
bis  first  volume,  with  additions)   In  1796. 

*  W^e  find  it  first  in  the  mouths  of  Garrow  and  I^ord  Kenyon,  —  two 
famously  ignorant  men. 


BEDINGFIELD'S  CASE  245 

plural;  this  made  it  considerably  more  convenient;  what- 
ever multiplied  its  ambiguity,  multiplied  its  capacity;  it 
was  a  larger  "  catch-all."  To  be  sure,  this  was  a  dangerous 
way  of  finding  relief,  and  judges,  text-writers,  and  students 
have  found  themselves  sadly  embarrassed  by  the  growing 
and  intolerable  vagueness  of  the  expression. 

It  is,  of  course,  an  essential  element  of  the  "  convenient 
obscurity  "  of  the  phrase  that  it  has  several  different  mean- 
ings. In  which  of  them  is  it  used  by  the  writers  of  the 
pamphlets  which  we  have  discussed?  Before  coming  to 
that,  let  us  notice  what  different  conceptions  the  phrase,  in 
the  common  plural  form  of  it,  may  naturally  import.  The 
following  may  be  mentioned:  (a)  A  conception  which 
limits  the  term  res  gestae  to  the  ultimate  fact  in  the  case, 
—  to  a  fact  in  issue;  (&)  One  which  extends  it  to  any  evi- 
dentiary fact:  —  and  then,  using  the  term  in  either  of  these 
two  ways,  1.  That  of  a  single  fact,  an  event,  a  transaction, 
of  which  a  declaration  may  be  a  part,  —  pars  rei  gestae, 
as  the  phrase  sometimes  is;  2.  That  of  the  details  that 
go  to  constitute  this  single  whole;  3.  That  of  several  dis- 
tinct facts,  events,  transactions,  going  to  make  up  a  larger 
composite  whole,  e.  g.,  the  notion  of  the  particulars  of  a 
business  or  a  piece  of  business  intrusted  to  an  agent  or  of 
a  series  of  connected  transactions  covered  by  a  conspiracy ; 
4,  That  of  the  one  composite  whole  so  made  up ;  5.  That  of 
evidentiary  or  illustrative  facts,  of  concomitant  circum- 
stances, or  "  surrounding  circumstances,"  —  to  use  the 
common  tautology  which  Stephen,  having  once  used,  dis- 
carded, —  as  distinguished  from  the  central  fact  thus  sur- 
rounded or  attended ;  6.  That  of  a  total  whole  embodying 
the  central  fact  with  its  entire  bulk  of  circumstance; 
7.  That  of  a  central  fact  and  some  of  its  surroundings,  e.  g., 
such  of  them  as  are  relevant  or  material  to  the  given  in- 
quiry. In  giving  these  meanings  the  writer  is  not  studious 
to  make  any  exhaustive  statement,  but  is  content  to  name 
such  as  come  to  mind  readily,  having  regard  to  the  use  of 
the  phrase  in  the  cases  and  in  the  text-books. 


246  LEGAL  ESSAYS 

The  question  which  we  are  examining  at  this  moment, 
it  will  be  perceived,  is  not  what  facts  or  declarations  are 
admissible  as  parts  of  the  res  gesta  or  res  gestae,  but  what 
we  mean  by  the  term,  and  what  is  the  true  and  natural 
meaning  of  it.  As  going  to  show  the  need  of  some  analysis 
of  the  import  of  this  phrase,  turn  to  a  few  instances  of  its 
use,  whether  in  the  singular  or  the  plural.  In  the  case 
of  Hoare  v.  Allen,^  it  is  not  quite  clear  whether  Lord 
Kenyon  meant  to  state  a  doctrine  that  the  declaration  was 
admissible  on  the  question  of  the  woman's  intent,  or  on  the 
plaintiff's  belief  of  her  intent,  or  as  one  of  a  set  of  facts 
material  to  be  known  in  order  to  present  the  question  fairly 
to  the  jury,  without  considering  what  its  precise  bearing 
might  be ;  but  his  use  of  the  singular  form  of  phrase  points 
to  the  conception  of  something  as  being  a  constituent  part 
of  some  whole,  whatever  that  whole  might  be.  The  same 
idea  seems  to  be  in  Lord  Ellenborough's  mind  in  Kobson 
V.  Kemp.  So  in  Aveson  v.  Kinnaird,  where  the  plural  form 
is  used,  the  counsel  press  the  admission  of  certain  declara- 
tions as  "  part  of  the  res  gestae,  .  .  .  substantially  put  in 
issue  by  the  several  traverses.  .  .  .  When  an  act  is  done 
to  which  it  is  necessary  to  ascribe  a  motive,  .  .  .  what  is 
said  at  the  time  from  which  the  motive  may  be  collected 
is  part  of  the  fact,  part  of  the  res  gestae  " ;  here  the  notion 
is  of  a  whole  with  its  constituent  parts ;  and  of  that  whole 
as  a  fact  actually  in  issue.  Such  also  seems  to  be  Phillipps's 
notion  in  the  passage  from  his  first  edition  before  quoted. 
But  observe  Starkie's  expressions  in  using  the  plural  form. 
In  his  first  edition  (vol.  i.  p.  39)  he  says:  "All  the  sur- 
rounding facts  of  a  transaction,  or,  as  they  are  usually 
termed,  the  res  gestae,  may  be  submitted  to  a  jury  " ;  later 
on,  however  (at  p.  49),  we  read:  "  Where  declarations  .  .  . 
are  admitted  ...  as  part  of  the  res  gestae  or  transaction," 
&c. ;  here  certainly  are  two  different  ideas.  Burrill,  in  his 
Circumstantial  Evidence   (p.  368),  distinguishes  circum- 

>  Ante,  p.  1^41. 


BEDINGFIELD'S  CASE  247 

stances  as  precedent,  subsequent,  or  concomitant,  and  says 
of  the  last :  "  These  ...  for  the  most  part  constitute  por- 
tions of  the  res  gesta  or  transaction  itself  " ;  it  is  added,  as 
to  the  last  class,  that  it  may  fairly  include  "  such  as  are 
not  strictly  contemporaneous,  but  such  as  immediately  pre- 
cede or  follow '' ;  the  conception  here  seems  to  be  that  of  a 
whole  made  up  of  constituent  parts. 

Now,  how  does  the  Lord  Chief  Justice  use  the  phrase  in 
his  discussion  with  Mr.  Taylor?  x\t  p.  20  of  his  pamphlet 
he  says :  "  While  these  particulars  .  .  .  constitute  the  res 
gestae,  in  other  words,  will  be  constituent  parts  of  the 
offence  charged,  .  .  .  (others)  form  properly  no  part  of 
the  res  gestae  —  in  other  words,  of  the  things  constituting, 
or  in  point  of  time  coexistent  and  coextensive  with  the 
offence " ;  here  we  find  no  less  than  three  different  con- 
ceptions in  the  same  sentence,  viz. :  1.  That  of  the  res 
gestae  as  meaning  a  total,  made  up  of  constituent  parts; 
2.  As  meaning  the  constituent  parts  that  make  up  a  total ; 
and  3.  As  including  things  that  do  not  constitute  a  total, 
but  are  "  coexistent  and  coextensive  "  with  a  total  constituted 
by  something  else;  and  all  these  meanings  are  limited,  as 
related  only  to  the  ultimate  fact,  "  the  offence  charged." 
Again  he  says  (p.  19):  "Whatever  act  or  series  of  acts 
constitute  .  .  .  the  principal  act  charged  as  an  offence  .  .  . 
and  whatever  may  be  said  by  either  of  the  parties  during 
the  continuance  of  the  transaction  with  reference  to  it, 
.  .  .  form  part  of  the  principal  transaction,  and  may  be 
given  in  evidence  as  part  of  the  res  gestae  or  particulars 
of  it";  here  the  conception  is  that  the  phrase  res  gestae 
means  the  particulars,  the  constituent  facts  only,  and  not 
the  whole  which  they  compose ;  and  again,  as  before,  it  is 
restricted  to  "  the  principal  act  charged  as  an  offence."  In 
Mr.  Taylor's  pamphlet  there  is  little  in  his  own  language 
to  show  what  his  precise  conception  is.  Speaking  of  E.  v. 
Megson,  he  says  of  the  woman's  statements :  "  They  are 
the  usual  expression  of  feelings  in  relation  to  an  occurrence 
or  res  which  has  just  happened"  (ante,  p.  235).     In  his 


248  LEGAL   ESSAYS 

treatise  (vol.  i.,  7th  ed.,  section  588)  he  says  of  the  rule  in 
question :  "  The  principal  points  of  attention  are,  whether 
the  circumstances  and  declarations  offered  in  proof  were  so 
connected  with  the  main  fact  under  consideration  as  to 
illustrate  its  character,  to  further  its  object,  or  to  form,  in 
conjunction  with  it,  one  continuous  transaction."  Here  the 
notion  appears  to  be  limited  to  the  ultimate  fact  in  issue, 
and  to  include  the  conceptions  (1)  of  a  composite  whole, 
made  up  of  this  main  fact  and  those  offered  in  evidence  as 
its  constituent  parts;  and  (2)  of  facts  going,  not  to  consti- 
tute a  whole,  but  to  illustrate  another  fact,  or  to  "  further 
its  object "  —  whatever  this  last  expression  may  mean. 

It  is  apparent  that  some  of  these  ambiguities  would  have 
been  avoided  if  the  singular  form  of  expression,  res  gesta, 
pars  rei  gestae,  had  been  adhered  to.  It  is  the  notion  which 
this  serves  to  indicate,  viz.,  that  of  a  whole  as  related  to 
its  constituent  parts,  which  appears  to  be  the  strictly  accu- 
rate one.^ 

IV.  Both  of  the  disputants  in  this  discussion  throw  over- 
board "  the  American  cases  " ;  they  are  pronounced  quite 
too  loose  in  their  doctrine  of  the  res  gesta.^     One  would 

'  How  far  an  extension  of  this  strict  conception  is  established  by 
the  cases  and  is  in  itself  desirable,  will  be  considered  hereafter. 

"  There  is,  indeed,  little  sign  of  any  considerable  examination  of 
them,  or  of  an  appreciation  of  a  certain  important  peculiarity  of  "  the 
American  cases  "  as  being  dispersed  among  thirty-nine  different  and, 
in  the  main,  independent  sources  of  authority  in  the  administration 
of  the  law.  It  is  sometimes  supposed  by  English  writers  that  the 
Supreme  ("otirt  of  the  United  States  is  an  authoritative  tribunal  in  its 
interpretation  of  the  common  law  :  it  would  not  be  strange,  e.  {;.,  If 
it  were  thought  in  England  that  the  case  of  Ins.  Co.  v.  Mosley,  8  Wall. 
397,  were  authoriiy  in  New  York  or  Massachusetts.  However  con- 
venient it  might  be,  if  this  were  so,  in  the  particular  of  giving  con- 
sistency to  our  law,  yet  we,  at  home,  have  grown  familiar  with  the 
fact  that  we  are  one  country  only  for  certain  purposes,  and  that  the 
administration  of  the  common  law  is  not  one  of  them  ;  as  regards  that 
end,  we  are  as  many  different  countries  as  we  are  States.  The  phrases 
"  American  law  "  and  "  the  doctrine  of  the  American  cases  "  are  useful 
and  often  suitable  phrases,  but  they  are  heard  much  oftener  than  they 
should  be.  While  they  are  convenient  as  indicating  an  exclusion  of 
any  consideration  of  English  or  continental  doctrine,  and  also,  in  a 
large  sense,  sometimes  as  importing  the  result,  in  law,  of  habits  or 
political  institutions  which  are  peculiar  here,  they  are  very  often  used 
by  our  own  writers  as  well  as  others  in  a  loose,  misleading  way,  tending 
to  foster  vague  conceptions,  —  as  if  there  were  some  common  standard 
of  authority  among  our  States  In  cases  when  there  is  not,  and  as  If 


BEDINGFIELD'S  CASE  249 

think  from  the  mode  of  reference  to  the  "  American  cases  " 
adopted  by  the  parties  to  this  controversy,  that  American 
judges  had  given  to  the  principle  of  the  res  gesta  an  ex- 
tension quite  unparalleled  in  England:  one  would  cer- 
tainly not  suppose  that  it  was  the  utterance  of  English 
judges  and  recognized  English  doctrine  that  are  oftenest 
in  the  mouths  of  judges  here  when  authority  is  sought  for 
whatsoever  is  loose  and  objectionable  in  this  vague  prin- 
ciple. And  yet  it  was  a  Lord  Chief  Justice  of  England 
who  said,  speaking  for  the  court,  less  than  forty  years  ago, 
in  Eouch  v.  Great  Western  Eailway  Co.,  1  Q.  B.  51,  60 
( 1841 )  :  "  The  principle  of  admission  is,  that  the  declara- 
tions are  pars  rei  gestae,  and  therefore  it  has  been  contended 
that  they  must  be  contemporaneous  with  it:  but  this  has 
been  decided  not  to  be  necessary,  and  on  good  grounds; 
for  the  nature  and  strength  of  the  connection  with  the  act 
are  the  material  things  to  be  looked  to,  and  although  con- 
currence of  time  cannot  but  be  always  material  evidence 
to  show  the  connection,  yet  it  is  by  no  means  essential." 
In  saying  this,  Lord  Denman  supported  himself  by  citing 
the  case  of  Eidley  v.  Gyde,  9  Bingham,  340  (3832),  where 
the  Lord  Chief  Justice  Tindal  had  said :  "  The  rule  is  not 
confined  to  the  precise  time  of  the  act  in  question.  .  .  . 
The  court  must,  in  each  case,  consider  whether  the  declara- 
tion proposed  .  .  .  does  or  does  not  come  within  a  reason- 
able time  of  the  disputed  act " ;  he  cited,  also,  the  language 
of  Park,  J.,  in  Eawson  v.  Haigh,  2  Bing.  99,  104  (1824)  : 
"  It  is  impossible  to  tie  down  to  time  the  rule  as  to  the 
declarations ;  we  must  judge  from  all  the  circumstances  of 
the  case;  we  need  not  go  to  the  length  of  saying  that  a 
declaration  made  a  month  after  the  fact  would,  of  itself, 
be  admissible ;  but  if,  as  in  the  present  case,  there  are  con- 
there  were-  some  preponderance,  ascertainable  and  likely  to  control,  as 
among  tribunals  recognizing  a  common  authority,  instead  of  a  mere 
divergence  of  view,  more  or  less  complete,  among  courts  of  quite  inde- 
pendent jurisdiction,  some  of  which  are  wedded  to  their  own  results 
because  they  are  peculiar,  and  most  of  which  have  the  power  to  per- 
petuate whatever  peculiarity  they  will. 


250  LEGAL  ESSAYS 

necting  circumstances,  it  may,  even  at  that  time,  form  part 
of  the  whole  res  gestae."  This  large  doctrine,  that  it  is 
not  necessary  that  the  declaration  should  be  contemporane- 
ous with  the  act,  and  that  the  moral  connection  between  the 
two  must  be  mainly  looked  at,  is  also  laid  down  to-day  by 
Taylor  in  his  Evidence  (vol.  i.,  7th  ed.,  section  588)  ;  while 
it  is  there  observed  that  the  view  that  contemporaneousness 
is  necessary  "  seems  still  to  be  the  law  in  America."  The 
passage  referred  to  reads  as  follows :  "  It  was  at  one  time 
thought  necessary  that  they  (the  declarations)  should  be 
contemporaneous  with  it  (the  main  fact)  ;  but  this  doctrine 
has  of  late  years  been  rejected,  and  it  seems  now  to  be 
decided  that,  although  concurrence  of  time  must  always  be 
considered  as  material  evidence  to  show  the  connection,  it 
is  by  no  means  essential,"  citing  Eouch  v.  Great  Western 
Railway  Co.  Taylor  also  cites  Ridley  v.  Gyde,  Rawson  v. 
Haigh,  and  Smith  v.  Cramer,  1  Bing.  N.  C.  585  (1835). 

It  would  have  been  interesting  to  know  the  Lord  Chief 
Justice  Cockburn's  view  of  the  cases  in  which  this  sort  of 
language  is  used,  and  also  to  know  how  Mr.  Taylor  recon- 
ciles his  condemnation  of  the  "  American  cases  "  with  his 
acceptance  of  the  doctrine  above  quoted.  The  class  of 
cases  in  which  this  is  laid  down  (cases  in  bankruptcy) 
might,  indeed,  have  been  set  apart  as  peculiar,  but  they 
are  not  so  dealt  with ;  see,  e.  g.,  1  Tayl.  Ev.  s,  588,  and 
Steph.  Dig.  Ev.  art.  8,  illustr.  (a).  It  is  these  English 
cases  that  are  relied  upon  by  our  courts  when  they  go 
farthest  in  their  dicta;  e.  g.,  in  Insurance  Company  v. 
Mosley,  8  Wall.  397,  407  (one  of  the  cases  condemned  by 
the  Chief  Justice  and  Mr.  Taylor),  the  court,  in  laying 
down  that  declarations  need  not  be  contemporaneous  with 
the  act,  rely  upon  Rawson  v.  Haigh,  and  quote  the  language 
of  Park,  J.,  above  given.^ 


'  The  language  Is  cited  as  that  of  "Baron  Park"  (sic).  The  un- 
fortunate error  of  name  In  this  citation  Is  often  repeated ;  It  attributes 
the  authority  of  that  great  lawyer,  Baron  Parke,  to  a  doctrine  which 
he  often  denied. 


BEDINGFIELD'S  CASE  251 

These  bankruptcy  cases  should  now  have  a  special  con- 
sideration; they  have  had  a  great  deal  to  do  with  the  rule 
which  we  are  considering.^  To  understand  them  it  will 
be  convenient  to  notice  the  difference  between  the  English 
law,  as  held  now  and  formerly,  on  the  subject  of  proving 
in  a  court  of  law  the  title  of  a  bankrupt.  At  present  the 
English  rule  seems  to  be  the  same  as  that  of  our  last  na- 
tional bankrupt  law,  —  it  makes  the  certificates  provided 
for  in  the  statute  conclusive  evidence  of  the  assignee's  title. 
But  it  was  formerly  necessary,  when  the  assignee  undertook 
to  proceed  in  a  common  law  court,  that  he  should  "  prove 
all  the  steps  essential  to  constitute  the  party  a  bankrupt 
and  himself  his  assignee.  (The  decree  of  the  commissioners 
in  bankruptcy)  is  not  even  prima  facie  evidence.  ...  To 
establish  title  to  the  bankrupt's  property,  the  assignee  must 
prove:  1.  The  commission;  2.  The  trading;  3.  The  act 
of  bankruptcy;  4.  The  petitioning  creditor's  debt;  5.  The 
assignment."  (2  Starkie  Ev.  141.)  Among  the  acts  of 
bankruptcy  named  in  the  statute  were  these,  viz.,  beginning 
to  "  keep  house,"  departing  the  realm,  and  otherwise  ab- 
senting one's  self,  —  in  each  case  with  the  intention  to 
delay  a  creditor.  In  proving  the  act  of  bankruptcy  there 
was  frequent  controversy  over  the  intent,  and  it  was  sought 
to  prove  this  intent  by  the  bankrupt's  own  declarations. 
Now  it  is  to  be  remarked  that,  among  the  grounds  on  which 
it  was  endeavored  to  bring  in  the  declarations,  was  an  un- 
sound notion  of  the  availability  of  them  as  against  the 
creditors,  if  made  at  any  time  before  an  act  of  bankruptcy, 

'  ["In  some  of  these  very  loose  dicta  occur,  which  have  confused 
the  subject  when  repeated  in  other  cases  of  a  different  character.  For 
some  explanations  as  to  these  cases  see  15  Am.  Law  Rev.  1.5  et  seq. 
It  will  be  observed  that  in  the  endeavor  to  prove  acts  of  bankruptcy 
consisting  of  the  doing  of  certain  acts  with  the  intention  to  delay 
a  creditor,  such  as  beginning  to  '  keep  house.'  departing  the  realm 
and  remaining  absent,  declarations  of  the  bankrupt  before  or  at  the 
time  of  the  act  have  sometimes  been  wrongly  conceived  of  as  admis- 
sions (Parke,  B.,  in  Coole  v.  Braham,  3  Ex.  183),  and  sometimes  treated 
as  declarations  accompanying  an  act.  In  some  cases  it  is  important 
to  remember  the  continuous  nature  of  the  act ;  in  others,  the  continuous 
nature  of  the  Intention,  whereby  intention  at  one  time  becomes  evi- 
dential of  intention  at  another."    Thayer's  Cas.  Ev.  (2d  ed.)  645,  n.] 


252  LEGAL  ESSAYS 

or  before  the  commission  issued,  as  if  the  bankrupt  and  his 
creditors  were  identified  in  interest.  A  relic  of  the  former 
unsettled  state  of  legal  conceptions  on  this  subject  has 
survived  in  that  anomalous  principle  —  one  of  the  three 
enumerated  by  Baron  Parke  in  Coole  v.  Braham,  3  Ex. 
183  (1848)  — by  which  the  assignee  was  permitted  to  prove 
the  petitioning  creditor's  debt  by  the  admission  of  the 
bankrupt  made  before  bankruptcy ;  ^  of  this  Baron  Parke 
remarked :  "  This  relaxation,  however,  of  the  strict  rules 
of  evidence  has  never  been  held  to  extend  to  the  proof  of 
the  trading  or  acts  of  bankruptcy  by  the  mere  admission 
of  the  bankrupt."  The  last  remark  might  mislead ;  strictly 
it  is  true,  but  it  is  not  true  if  taken  in  the  sense  that  it  has 
never  been  permitted  to  prove  one  element  of  the  act  of 
bankruptcy,  namely,  the  intention  of  the  bankrupt,  by  his 
own  admission  made  before  bankruptcy;  or  in  the  sense 
that  the  principle  that  admissions  of  the  bankrupt  before 
the  act  of  bankruptcy  were  generally  to  be  received  as 
against  creditors,  has  never  been  judicially  laid  down.^ 
On  the  contrary,  in  Bateman  v.  Bailey,  5  T.  R.  512  (1794), 
where  the  admission  was  opposed  on  the  ground  that  the 
bankrupt  himself  could  not  be  a  witness  on  this  point,  a 
widely  expressed  per  curiam  opinion  ran  thus :  "  Although 
the  bankrupt  cannot  be  called  as  a  witness  to  prove  his  own 
act  of  bankruptcy,  yet  it  never  was  doubted  but  that  what 
was  said  by  him  at  the  time,  in  explanation  of  his  own  act, 
may  be  received  in  evidence.  An  admission  by  him  before 
his  act  of  bankruptcy  of  a  debt  due  to  another  is  sufficient 
to  charge  his  estate.  If  he  had  been  absent  from  his  home, 
an  admission  by  him  that  he  had  been  abroad  to  avoid  his 
creditors  is  good  evidence.  Whatever  he  says,  in  short, 
before  his  bankruptcy  is  evidence  explanatory  of  the  act 
done  by  him.  In  this  instance  he  absented  himself  from 
home  under  suspicious  circumstances,  for  which  his  reasons 

1   [So  Watts  V.  Thorpe,  1  Camp.  376]. 

■■'  ["  It  Is  the  dally  practice  In  actions  brought  by  assignees  of  a 
bankrupt  to  prove  declarations  of  the  bankrupt  before  he  became  so." 
Lord  Kenyon  In  Kempland  v.  Macauley,  Peake,  95  (1791).] 


BEDINGFIELD'S  CASE  253 

were  asked,  and  without  doubt  it  was  competent  to  inquire 
of  the  witness  to  whom  he  communicated  them  what  those 
reasons  were."  ^  Although  in  this  case  the  inquiry  and 
the  answer  were  made  at  the  time  of  the  bankrupt's  return 
from  his  absence,^  and  although  the  opening  sentence  of 
the  opinion  takes  notice  of  that,  yet  it  will  be  observed  in 
how  unqualified  a  form  the  remainder  of  the  opinion  is 
expressed.  It  was  not  strange  that  these  imperfectly 
guarded  utterances  should  mislead.  And  so  we  find  in 
Eawson  v.  Haigh,  Eidley  v.  Gyde,  and  ]{ouch  v.  Great 
Western  Eailway  Co.,  that  the  loose  views  above  quoted  run 
back  to  Bateman  v.  Bailey  as  their  foundation.  So  also 
in  1  Taylor's  Evidence  (7th  ed.),  section  588,  the  doctrine 
quoted  above  is  elaborately  laid  down  upon  the  authority  of 
these  cases.  Greenleaf  had  said  in  his  section  110:  "  They 
(the  declarations)  must  be  concomitant  with  the  principal 
act,"  &c. ;  and  in  section  108  he  had  adopted  in  a  note  the 
language  of  the  Chief  Justice  in  Enos  v.  Tuttle,  3  Conn. 
250  (1820),  that  declarations,  to  become  parts  of  the  res 
gesta,  "  must  have  been  made  at  the  time  of  the  act  done," 
&c. ;  but  Taylor,  in  the  section  above  named,  diverging 
from  Greenleaf,  says  of  the  declaration  and  the  main  fact : 
"  It  was  at  one  time  thought  necessary  that  they  should 
be  contemporaneous  with  it;  but  the  doctrine  has  of  late 
years  been  rejected,"  &c. ;  and  in  a  note,  after  the  remark 
that  "  it  was  at  one  time  thought  necessary  that  they  should 
be  contemporaneous  with  it,"  the  author  says :  "  This  seems 
still  to  be  law  in  America.  Thus  in  Enos  v.  Tuttle,"  &c., 
—  and  then  follows  Greenleaf's  quotation  above  named. 
But,  unhappily,  as  has  already  been  intimated,  to  America 
also  the  influence  of  these  cases  spread ;  the  opinion  of  the 
majority  of  the  Supreme  Court  of  the  United  States  in 
Insurance  Company  v.  Mosley,  8  Wall.  397  (1869),  was 
shaped  by  it,  and  so  of  many  another  case  in  this  country. 
Such  has  been  the  ill-begotten  progeny  of  the  dicta  in 

*  Observe  that  the  Latin  phrase  is  not  used  in  this  case. 

2  The  contrary  statement  in  Ridley  v.  Gyde,  seems  clearly  an  error. 


254  LEGAL  ESSAYS 

Bateman  v.  Bailey.  Lord  Hardwicke  had,  indeed,  long 
before  been  reported  as  saying  of  such  declarations  of  a 
bankrupt,  in  Ambrose  v.  Clendon,  Cases  t.  Hardwicke,  207 
(1736),  "  It  is  not  usual  to  allow  such  evidence  unless  when 
it  is  concomitant  with  facts,  as  what  he  says  when  removing 
his  books  or  his  goods,  &c.,  but  not  else."  Evans,  in  his 
learned  Appendix  to  Pothier  on  Obligations  (vol.  ii.  p.  285), 
in  1806,  had  pointed  out  the  looseness  of  these  expressions 
in  Bateman  v.  Bailey,  and  had  insisted  that  the  case  was, 
in  fact,  to  be  rested  on  the  doctrine  that  the  declaration 
was  a  part  of  the  act  which  it  accompanied.  The  acute 
and  learned  Christian,  also,  in  his  treatise  on  Bankruptcy, 
had  said  in  vol.  i.  (published  in  1812),  pp.  184,  185: 
"  What  a  bankrupt  declares  at  the  time  of  committing  an 
act  of  bankruptcy  is  always  received  in  evidence,  when 
proved  by  another  person.  .  .  .  But  these  declarations  have 
been  greatly,  I  conceive,  misunderstood  or  misrepresented. 
They  must  accompany  the  act ;  for  where  words  and  actions 
are  contemporaneous,  they  constitute  one  transaction,  they 
are  together  one  res  gesta,  and  the  words  are  evidence  of 
the  reason  of  the  act  or  the  intention  of  the  actor.  .  .  . 
What  Lord  Kenyon  and  the  court  said  in  th6  case  of  Bate- 
man V.  Bailey,  5  T.  E.  512,  has,  I  conceive,  led  many  into 
error  upon  this  subject.  ...  If  the  court  intended  to  say 
tliat  what  he  declared  after  his  return  was  complete,  and 
when  he  was  doing  no  act  connected  with  it,  it  is  presumed 
the  decision  cannot  be  supported.  Whilst  he  is  preparing 
to  go,  or  in  the  act  of  going,  and  during  his  absence  from 
home,  and  whilst  he  is  returning  or  unpacking  his  portman- 
teau, &c.,  what  he  says  is  part  of  the  act  of  bankruptcy; 
but  when  he  is  only  meditating  a  future  act,  or  speaking  of 
a  past  one  completely  finished,  his  words  surely  can  have 
no  more  legal  operation  than  those  of  any  other  man." 
And  again,  id.  vol.  ii.  (published  in  1814),  p.  672:  "The 
declarations  of  a  bankrupt  of  his  intention  for  doing  an 
act  concomitant  with  the  act  are  evidence.  But  tlie  fact 
(act)  must  be  proved  by  a  witness  who  has  knowledge  of 


BEDINGFIELD'S  CASE  255 

it,  and  then  his  declarations  at  the  time,  proved  by  the  same 
or  another  witness,  will  make  the  evidence  complete.  I^o 
error  is  so  common  as  an  attempt  to  prove  a  departure  from 
the  dwelling-house  by  a  witness,  who  proves  only  that  the 
bankrupt  told  him  that  he  had  been  from  home  to  avoid 
his  creditors.  If  the  witness  proves  that  the  bankrupt  was 
actually  at  a  distance  from  his  dwelling-house  when  he 
told  him  that  he  was  keeping  from  his  home  from  an  appre- 
hension of  his  creditors,  that  proves  both  the  fact  and  the 
intent."  Baron  Parke,  also,  had  repeatedly  laid  down  the 
law  in  exact  conformity  with  these  sound  views  of  Christian. 
In  Newman  v.  Stretch,  M.  &  M.  338  (1829),  he  had, 
although  with  an  observable  reluctance,  admitted  the 
declaration  of  a  bankrupt  at  the  time  of  his  return  as  to 
the  reason  of  his  absence,  —  "  on  the  authority  of  decided 
cases,  especially  Bateman  v.  Bailey,  5  T.  R.  512,  I  must 
receive  the  evidence  of  the  supposed  bankrupt's  declara- 
tions at  the  time  of  his  return  " ;  but  in  Lees  v.  Marton, 
1  Moody  &  Eobinson,  210  (1832),  where  the  bankrupt  had 
denied  himself  to  a  creditor  in  the  morning  and  had  made  a 
declaration  about  his  absence  in  the  evening  of  the  same 
day,  "  Parke,  J.,  rejected  the  evidence,  saying,  that  unless 
the  statement  could  be  proved  to  have  been  made  by  the 
bankrupt  whilst  he  was  absenting  himself,  or  immediately 
upon  his  return,  it  could  not  be  admitted  as  part  of  the 
res  gesta.''  And  in  Thomas  v.  Connell,  4  M.  &  W.  267 
(1838),  where,  in  proving  a  fraudulent  preference  by  the 
bankrupt,  his  declaration  (not  connected  with  any  act) 
about  a  debt  due  from  him  was  held  admissible  to  prove 
his  own  knowledge  of  his  insolvent  condition  and  his  fraud 
in  preferring  the  defendant.  Baron  Parke  said :  "  I  have 
always  understood  the  general  rule  to  be,  that  a  verbal 
statement  is  not  receivable  in  evidence,  unless  made  at  or 
about  the  time  of  an  act  done,  and  in  order  to  explain  the 
act;  as,  for  instance,  if  it  is  offered  to  explain  a  person's 
absence  from  home,  and  is  made  just  before  or  just  after 
his  departure.    But,  on  the  other  hand,  if  a  fact  be  proved 


256  LEGAL  ESSAYS 

aliunde,  it  is  clear  that  a  particular  person's  knowledge  of 
that  fact  may  be  proved  by  his  declaration." 

jS'ot  only  had  there  been  these  repeated  explicit  correc- 
tions of  the  errors,  which  Mr.  Taylor  has  preserved  in  his 
section  588,  above  quoted,  but  it  was  obvious,  upon  any  care- 
ful inspection  of  the  cases  upon  which  he  relies,  that  they 
gave  but  little  support  to  the  doctrine  referred  to.  In  Bate- 
man  V.  Bailey,  the  case  itself  was  that  of  a  bankrupt's  decla- 
ration as  to  the  cause  of  his  absence,  made  immediately  upon 
his  return ;  in  Kawson  v.  Haigh  like  declarations  were  made 
at  his  departure  as  well  as  during  his  absence;  the  act 
of  bankruptcy  relied  on  was  that  of  departing  the  realm, 
and  it  was  held  by  Best,  C.  J.,  that  "  departing  the  realm 
is  a  continuing  act,  and  these  letters  were  written  during 
its  continuance  " ;  Ridley  v.  Gyde  seems  hardly  explainable, 
and  does  give  a  certain  support  to  the  doctrine.  In  Smith 
V.  Cramer  the  declarations  seem  to  have  been  like  those  in 
Thomas  v.  Connell,  evidentiary  of  the  knowledge  of  the 
bankrupt  as  to  his  condition ;  and  Rouch  v.  Great  Western 
Railway  was  a  case  where  the  bankrupt's  declarations  were 
made  immediately  on  his  return,  and  where  the  court  ex- 
pressly said  that  they  need  not  rely  on  the  doctrine  above 
quoted.  It  seems,  therefore,  (1)  that  the  supposed  au- 
thority for  this  loose  doctrine  about  the  res  gesta  is  English ; 

(2)  that  it  is  laid  down  in  the  principal  English  treatise 
of  the  present  day  upon  English  authority  and  in  express 
contrast  with  the  more  conservative  American  view ;    but 

(3)  it  ought  in  candor  to  be  added  that  the  authorities  cited 
for  the  doctrine,  excepting  one,  support  it  only  by  the  dicta 
of  certain  Judges,  not  the  most  eminent,  and  that  the  real 
doctrine  of  the  bankruptcy  cases  does  not  deny  that  the  dec- 
laration, in  order  to  be  admissible  as  a  part  of  the  res  gesta, 
must  be  "  contemporaneous  "  or  "  concomitant "  with  it. 

While  Greenleaf  upon  the  point  in  question  is  thus  more 
strict  and  more  accurate  than  Taylor,  it  is  yet  to  be  con- 
fessed that  in  some  other  directions  he  gave  rein  to  the 
principle  of  admitting  declarations  as  a  part  of  the  res 


BEDINGFIELD'S  CASE  257 

gesta,  and  carried  things  much  beyond  the  line  of  English 
authority  or  of  approved  authority  anywhere;  and  his 
doctrine  has  spread  into  many  of  our  cases.  An  examina- 
tion of  his  view,  a  consideration  of  some  of  the  cases,  and 
a  statement  and  justification  of  what  may  seem  to  be  the 
sound  doctrine  on  the  general  subject,  will  be  attempted 
in  a  third  and  concluding  article. 

Ill 

The  reader's  attention  was  called  in  a  former  article 
to  certain  objectionable  statements  in  the  English  books, 
and  to  the  fact  that  a  stricter  doctrine,  upon  the  points 
there  referred  to,  is  laid  down  by  Greenleaf.  But  it  was 
stated  that  this  author,  in  some  aspects  of  the  subject,  has 
given  out  loose  doctrine  which  has  found  its  way  into  the 
judgments  of  our  courts. 

What  is  here  referred  to  will  be  found  in  Greenleaf's 
chapter  on  Hearsay  (Evidence,  Part  II.,  Chapter  5).  He 
states  as  his  general  view  (it  is  not  peculiar  to  him),  that 
declarations  which  are  part  of  the  res  gesta  are  admitted, 
not  by  way  of  exception  to  the  hearsay  rule,  but  as  not  being 
within  the  scope  of  it;  and  the  chapter  named  is  mainly 
occupied  with  a  consideration  of  four  separate  classes  of 
declarations,  described  in  section  123,  which  are  discrimi- 
nated from  hearsay  in  the  way  thus  indicated,  —  all  of  these 
four  classes,  as  Greenleaf  conceives,  being  reducible  to 
"  the  principle  of  the  res  gestae."  What  is  this  "  princi- 
ple "  ?  It  is  nowhere  explicitly  stated ;  in  order  to  grasp 
it  we  must  scrutinize  and  compare  a  few  of  Greenleaf's  state- 
ments. The  principle  of  the  rule  against  hearsay,  as  con- 
ceived by  him,  is  found  in  sections  99  and  124 :  "  The  term 
hearsay  .  .  .  denotes  that  kind  of  evidence  which  does  not 
derive  its  value  solely  from  the  credit  to  be  given  to  the 
witness  himself,  but  rests  also  in  part  on  the  veracity  and 
competency  of  some  other  person.  .  .  .  The  principle  of 
this  rule  is,  that  such  evidence  requires  credit  to  be  given 

17 


258  LEGAL  ESSAYS 

to  a  statement  made  by  a  person  who  is  not  subjected  to 
the  ordinary  tests  enjoined  by  the  law  for  ascertaining  the 
correctness  and  completeness  of  his  testimony."  This  being 
the  principle  which  fixes  the  objectionable  quality  of  hear- 
say, we  might  logically  expect  it  to  be  laid  down  that  where 
the  declaration  is  available  in  evidence  on  grounds  that  do 
not  require  any  trust  in  the  declarant,  it  does  not  come 
under  the  prohibition  of  the  hearsay  rule.  Is  this  the 
theory  that  Greenleaf  intends  to  put  forth?  Twenty-four 
of  the  twenty-nine  sections  that  compose  his  chapter  on 
hearsay  are  taken  up  with  the  four  classes  of  things  above 
referred  to;  and  then  they  are  summed  up  in  section  123, 
in  this  way :  "  Thus  we  have  seen  that  there  are  four  classes 
of  declarations,  which,  though  usually  treated  under  the 
head  of  hearsay,  are  in  truth  original  evidence;  the  first 
class  consisting  of  cases  where  the  fact  that  the  declaration 
was  made,  and  not  its  truth  or  falsity,  is  the  point  in  ques- 
tion; the  second  including  expressions  of  bodily  or  mental 
feelings,  where  the  existence  or  nature  of  such  feelings  is 
the  subject  of  inquiry;  the  third  consisting  of  cases  of 
pedigree,  and  including  the  declarations  of  those  nearly 
related  to  the  person  whose  pedigree  is  in  question;  and 
the  fourth  embracing  all  other  cases  where  the  declaration 
offered  in  evidence  may  be  regarded  as  part  of  the  res 
gestae.  All  these  classes,"  it  is  added,  "  are  involved  in 
the  principle  of  the  res  gestae,  and  are  separately  treated 
merely  for  the  sake  of  greater  distinctness."  The  common 
quality  —  that  which  brings  these  classes  of  cases  all  under 
one  principle  —  is  not  expressly  defined ;  we  must  collect 
it  from  what  is  said  of  each  class. 

The  principle  of  those  miscellaneous  cases  which  Green- 
leaf  groups  and  designates  under  the  specific  Latin  name, 
as  "  all  other  cases  where  the  declaration  may  be  regarded 
as  part  of  the  res  gestae!'  is  implied  in  what  is  found  in 
sections  108  and  110;  statements  coming  under  this  head 
are  there  said  to  be  "  distinguished  from  hearsay,  by  their 
connection  with  the  principal  fact  under  investigation  " ;  as 


BEDINGFIELD'S  CASE  259 

being  "contemporaneous  with  the  main  fact  under  con- 
sideration, and  ...  so  connected  with  it  as  to  illustrate 
its  character  " ;  and  as  being  "  concomitant  with  the  prin- 
cipal act,  and  so  connected  with  it  as  to  be  regarded  as 
the  mere  result  and  consequence  of  the  coexisting  mo- 
tives," ^  —  as  distinguished  from  being  "  merely  narrative 
of  a  past  occurrence." 

Now  how  is  it  that  the  other  three  classes  are  involved 
in  the  principle  of  this  one,  "  the  principle  of  the  res 
gestae  "  f  The  first  of  them  is  one  "  where  the  fact  that 
the  declaration  was  made,  and  not  its  truth  or  falsity,  is 
the  point  in  question  " ;  the  peculiarity  of  this  is  stated  in 
section  101 ;  it  lies  simply  in  what  is  thus  said,  viz.,  that  the 
truth  or  falsity  of  the  declaration  is  not  in  question,  but 
only  the  fact  that  it  was  made.  The  second  class  is  thus 
described  in  section  123  :  "The  second,  including  expressions 
of  bodily  and  mental  feelings,  where  the  existence  or  nature 
of  such  feelings  is  the  subject  of  the  inquiry  " ;  the  pecu- 
liarity of  this  class  is  to  be  collected  from  section  102,  viz., 
that  these  are  "  the  usual  expressions  of  such  feelings  made 
at  the  time  in  question ;  ...  if  they  were  the  natural  lan- 
guage of  the  affection,  whether  of  body  or  mind,  they  furnish 
satisfactory  evidence,  and  often  the  only  proof,  of  its  exist- 
ence." The  characteristic  of  the  third  class,  "  consisting 
of  cases  of  pedigree,  and  including  the  declarations  of  those 
nearly  related  to  the  party  whose  pedigree  is  in  question," 
is  to  be  gathered  from  sections  103-106 ;  it  is  stated  in  sec- 
tion 103,  thus :  "  It  is  now  settled  that  the  law  resorts  to 
hearsay  evidence  in  cases  of  pedigree,  upon  the  ground  of 
the  interest  of  the  declarants  of  (in)  the  person  from  whom 
the  descent  is  made  out,  and  their  consequent  interest  in 
knowing  the  connections  of  the  family."  2 

*  As  to  this  expression,  which  is  from  2  Evans's  Pothier,  285,  see 
Eden  on  Banljruptcy,  p.  360. 

2  This  language  is  from  the  opinion  of  Lord  Chancellor  Ersklne, 
In  13  Ves.  147.  "  The  law  resorts  to  hearsay  of  relations  upon  the 
principle  of  interest  in  the  person  from  whom  the  descent  is  made  out. 
...  If  a  person  says  (&c.)  ...  it  is  not  necessary  f&c.)  .  .  .  hut  it 
is  evidence  from  the  interest  of  that  person  in  knowing  the  connections 
of  the  family." 


260  LEGAL  ESSAYS 

Now  if  it  be  true  that  these  are  all  illustrations  of  the 
same  principle,  then  it  is  not  one  that  requires  the  declara- 
tion to  be  contemporaneous  either  with  the  main  fact  under 
investigation,  or  with  any  evidentiary  fact.  For  in  the 
third  class  the  probative  virtue  of  the  declarations  is  con- 
ceived by  Greenleaf  to  lie  in  "  the  interest  of  the  declar- 
ants'^  in  the  person  or  family  with  regard  to  which  the 
controversy  exists.  As  to  these  declarations  in  pedigree 
neither  Greenleaf  nor  anybody  else  ever  contended  that 
they  should  be  made  contemporaneously  with  any  act  or  as 
illustrative  of  anything  else,  i^otwithstanding,  then.  Green- 
leaf's  requirement  of  contemporaneousness  in  section  108, 
when  speaking  of  declarations  which  he  puts  under  a  sepa- 
rate and  distinctive  title  of  "  res  gestae,"  it  would  seem  that 
in  speaking  of  "  the  principle  of  the  res  gestae,"  he  con- 
templates something  more  expansive.  The  only  common 
quality  in  Greenleaf s  four  classes  of  declarations  is  the 
negative  one,  that  their  valvs  in  the  case  does  not  necessarily 
rest  upon  any  trust  reposed  in  the  declarant. 

To  sum  up,  then:  Greenleaf s  conception  of  the  rule 
against  hearsay,  and  of  "  the  principle  of  the  res  gestae," 
to  the  elucidation  of  which  the  chapter  on  Hearsay  is  mainly 
devoted,  —  may  be  thus  drawn  out :  —  The  rule  against 
hearsay  prohibits  testimony  that  requires  the  tribunal  to 
put  faith  in  any  other  person  than  a  witness  duly  sworn 
and  examined  in  the  case  in  hand;  but  it  is  not  directed 
against  testimony  that  does  not  require  such  trust  in  an 
unexamined  person;  if  the  thing  sworn  to  should  have  a 
probative  virtue,  relevant  and  material  in  the  case  in  hand, 
not  dependent  upon  the  credit  of  any  unexamined  person, 
then,  so  far  as  this  rule  goes,  it  is  good  evidence;  it  is  not 
material  that  the  thing  sworn  to  —  the  declaration  of  a 
third  party  —  is  one  which  in  the  nature  of  it  admits  of 
being  believed  on  the  credit  of  the  declarant,  or  that  there 
is  danger  of  a  jury's  taking  it  on  that  ground,  so  long  as 
it  has  a  sufficient  probative  quality  independent  of  that. 
Here,  then,  are  two  things,  (1)  hearsay,  and  (2)  something 


BEDINGFIELD'S  CASE  261 

which  is  not  hearsay;    they  are  not  (1)  hearsay  and  (2) 
an  exception  to  hearsay. 

In  thus  dealing  with  the  subject  Greenleaf's  general  con- 
ceptions were  not  original,  —  they  were  English ;  he  took 
them  from  the  eighth  edition  of  Phillipps  on  Evidence, 
known  as  Phillipps  and  Amos  on  Evidence,  published  in 
1838,  four  years  before  his  own  treatise;  and  that  again 
seems  in  some  respects  to  have  followed  Starkie  in  1824. 
Before  this  last  date,  in  Phillipps's  earlier  editions,  the  case 
of  declarations  which  are  part  of  the  res  gesta  was  dealt  with 
simply  as  an  exception  to  the  hearsay  rule,  like  dying 
deehrations  and  the  other  well-known  exceptions ;  ( 1  Phil- 
lipps Ev.  1st  ed.  c.  7,  s.  7).  Starkie,  while  classing  the 
cases  coming  under  the  head  of  the  res  gesta  with  the  others, 
for  the  first  time  dealt  with  all  of  them  as  no  exceptions, 
but  as  not  coming  within  the  rule  at  all.  "  The  objection," 
he  says  (Part  I.,  1st  edition,  s.  xxvii.),  "to  the  reception 
of  hearsay  evidence  is  founded  wholly  upon  the  considera- 
tion, that  it  is  too  vague  and  unsubstantial  to  afford  any 
reasonable  presumption  as  to  the  truth  of  the  recited  fact " ; 
and  then  the  cases  of  the  7-es  gesta  and  the  others  are  intro- 
duced by  naming  "  several  classes  of  cases  .  .  .  where 
declarations  or  entries  (unlike  declarations  generally)  pos- 
sess an  intrinsic  credit  beyond  the  mere  unauthorized  asser- 
tion of  a  stranger,"  and  which  are  admitted  because  "  they 
afford  a  reasonable  presumption  as  to  the  truth  of  the  facts 
to  which  they  relate."  Starkie's  view  of  the  hearsay  rule, 
then,  seems  to  have  been  that  it  rejected  all  declarations 
whose  evidentiary  value  lay  only  in  the  credit  of  an  unex- 
amined person ;  and  that  this  rejection  went  upon  the  view 
that  such  evidence  was  too  vague  and  unsubstantial ;  but 
that  declarations  which  had  an  evidentiary  quality  drawn 
from  other  sources  were  not  within  its  prohibition;  he  did 
not  conceive  of  them  as  exceptions  to  the  rule,  but  as  not 
within  it ;  such  declarations  were  not  "  excepted  out  of  the 
general  rule,"  but  were  to  be  judged  of  by  the  usual  tests 
of  admissibility  as  if  they  were  facts  of  any  other  sort. 


262  LEGAL  ESSAYS 

Then  came  the  serious  overhauling  of  Phillipps's  book  in 
1838.  In  the  new  edition  we  have  declarations  which  are 
said  to  be  part  of  the  res  gesta  more  plainly  and  elaborately 
discriminated  from  others  as  not  being  within  the  prohibi- 
tion of  the  rule  against  hearsay;  while  we  have  the  case 
of  declarations  of  deceased  persons  in  questions  of  pedigree, 
and  those  against  interest,  &c.,  treated  differently  —  i.e., 
treated  as  exceptions  to  the  rule  against  hearsay.  The 
writer's  conception  of  hearsay  is  stated  at  p.  197,  and  again 
at  p.  217,  much  in  the  phraseology  that  Greenleaf  repeats: 
"In  its  legal  sense  it  (hearsay)  is  confined  to  that  kind  of 
evidence  which  does  not  derive  its  effect  solely  from  the 
credit  to  be  attached  to  the  witness  himself,  but  rests  also 
in  part  on  the  veracity  and  competency  of  some  other  per- 
son." 1  And  again :  "  The  principle  of  the  rule  according 
to  which  evidence  is  rejected  on  the  ground  of  its  being 
hearsay  is,  that  such  evidence  requires  credit  to  be  given 
to  a  statement  made  by  a  person  who  is  not  subjected  to 
the  ordinary  tests."  Here  the  view  intimated  is  the  same 
which  is  found  in  Greenleaf;  viz.,  that  statements  by  unex- 
amined persons  which  have  an  evidentiary  value  not  derived 
from  the  credit  of  him  who  uttered  them  are  not  within  the 
rule  against  hearsay. 

But  Greenleaf  was  wholly  peculiar  in  introducing  a  large 
"  principle  of  the  res  gestae,"  and  in  referring  to  it  declara- 
tions in  pedigree,  declarations  by  an  occupant  of  land 
relating  to  his  possession,  and  declarations  in  the  course 
of  business.  By  the  English  law  at  the  time  Greenleaf 
wrote,  as  well  as  now,  and  by  the  best-esteemed  cases  here, 
it  is  requisite  to  the  admission  of  the  declarations  in  these 
la^t  cases,  so  far  as  they  are  admitted  at  all,  that  the  decla- 
rant should  be  dead.^  That  brings  them  to  the  level  of 
the  other  well-known  exceptions  to  hearsay,  and  should  take 
them   out   of   Greenleaf's  "principle   of  the   res  gestae.'' 

'  The  present  writer  has  here  and  elsewhere  given  his  own  italics. 
^  To    some   extent   disabilitfns   other    than    death   are   enough    here. 
Rut  it  is  unnecessary  to  go  into  detail. 


BEDINGFIELD'S  CASE  263 

Greenleaf  has  thus  helped  to  give  a  vague  reach  and  diffu- 
sion to  the  doctrine  relating  to  declarations  which  are  a 
part  of  the  res  gesta,  which  has  puzzled  students  of  this 
branch  of  our  law  not  a  little;  and  what  is  worse,  owing 
to  the  great  authority  of  Mr.  Greenleaf's  name,  and  the 
many  merits  of  a  treatise  upon  which  our  lawyers  have  been 
trained  for  nearly  forty  years,  —  his  views,  in  some  respects 
very  ill-considered,  have  slipped  unquestioned  into  the 
opinions  of  some  American  courts.^ 

In  proceeding  now  to  consider  what  is  the  true  rule  re- 
garding the  admission  of  declarations  as  a  part  of  the 
res  gesta,  it  is  evidently  desirable,  if  indeed  it  be  not  neces- 
sar}%  to  do  what  the  text-writers  have  done;  viz.,  to  indicate 
the  relation  of  this  rule  to  the  general  rule  against  hearsay. 
It  is  impossible  here  to  go  into  this  large  subject  of  hearsay 
in  any  detail,  to  weigh  authorities,  or  to  go  much  into  the 
grounds  of  the  opinions  expressed;  but  a  few  words  must 
be  given  to  it.     It  is  conceived  that  no  statement  and  no 

^  E.  g.  Fennerste'in's  Champagne,  3  Wall.  145,  149.  Taylor  has  pre- 
served the  general  method  adopted  by  Greenleaf.  While  he  is  more 
accurate  in  putting  declarations  in  pedigree,  in  the  course  of  business, 
and  relating  to  possession,  among  the  exceptions  to  hearsay,  he  follows 
Greenleaf's  view,  that  the  other  sorts  of  declarations  come  in  as 
"original  evidence";  i.e.  (as  he  expressly  uses  the  term  in  this 
connection)  as  not  within  the  principle  of  hearsay.  At  section  606, 
in  his  seventh  edition,  we  read  almost  Greenleaf's  words  :  "  The  fore- 
going observations  will  have  shown  that  there  are  three  classes  of  dec- 
larations which,  though  usually  treated  under  the  head  of  hearsay,  are 
in  truth  original  evidence  ;  the  first  class  consisting  of  cases  where  the 
fact  that  the  declaration  was  made,  and  not  its  truth  or  falsity,  is  the 
point  in  question ;  the  second,  including  expressions  of  bodily  or  mental 
feelings,  where  the  existence  or  nature  of  such  feelings  is  the  subject 
of  inquiry  ;  and  the  third  embracing  all  other  cases  where  the  declara- 
tion offered  in  evidence  may  be  regarded  as  part  of  the  res  gestae.  All 
these  classes  are  involved  in  the  principle  of  the  last,  and  have  been 
separately  treated  merely  for  the  sake  of  greater  distinctness."  After 
the  identification  of  these  different  sorts  of  declarations,  one  is  inter- 
ested when  he  observes  that  Chief  Justice  Cockburn,  at  p.  9  of  his 
pamphlet,  compliments  Mr.  Taylor  on  dealing  with  them  as  essentially 
different.  After  speaking  of  the  case  of  Aveson  v.  Kinnaird,  he  snys  : 
"  Rut  that  decision  .  .  .  comes,  as  you  very  correctly  point  out  in  your 
work  on  Evidence  (s.  518),  referring  to  this  very  case,  under  an  en- 
tirely different  head  and  rule  of  evidence ;  namely,  that.  '  whenever  the 
bodily  or  mental  feelings  of  an  individual  are  material  to  be  proved, 
the  usual  expressions  of  such  feelings,  made  at  the  time  in  question, 
are  admissible  in  evidence.' "  Mr.  Taylor  receives  this  compliment 
in  silence. 


264  LEGAL   ESSAYS 

explanation  of  the  existing  condition  of  the  law  on  this 
head  can  be  satisfactory  which  does  not  emphasize,  a  good 
deal  more  than  is  commonly  done  in  our  text-books,  the 
effect  of  the  jury  in  determining  the  shape  of  the  law.^ 
The  English  law  separates  by  a  heavy  line  of  discrimination 
that  form  of  circumstantial  evidence  which  consists,  or  is 
even  but  partly  composed,  of  words  importing  anything 
material  to  the  case,  or  of  acts  whose  import  is  that  of  a 
statement,  from  all  other  kinds  of  circumstantial  evidence.- 

1  [See  Thayer's  Preliminary  Treatise  on  Evidence  passim.] 

2  ["The  subject  of  the  last  section  (res  fjcsta)  is  often  loosely 
handled,  —  as  if  it  were  enough  to  find  that  declarations  were  in  them- 
selves probative,  merely  as  circumstantial  facts,  without  relying  on 
the  declarant's  credit,  and  as  if,  by  calling  them  '  verbal  facts,'  they 
could  then  be  treated  just  like  other  facts.  But  In  studying  the  hear- 
say rule  and  observing  the  shape  of  the  exceptions  to  it,  all  becomes 
confusion  if  it  be  not  remembered  that  declarations  are  often  funda- 
meutally  different  from  other  facts.  Remarks  on  the  present  subject 
are  found  in  treatises  and  opinions,  which,  although  sound  enough 
in  point  of  abstract  reason  and  good  sense,  are  quite  misleading  as 
indicating  the  present  state  of  the  law.  Often-quoted  passages  from 
(Jrcenleaf  and  Wharton  may  be  referred  to  as  illustrating  what  is  here 
said.  See  also  Denver,  etc.  R.  Co.  v.  Spencer,  25  Col.  9,  and  various 
Texas  cases,  e.  g.,  Ry.  Co.  v.  Anderson,  82  Tex.  519 ;  De  Walt  v. 
Houston,  etc.  R.  Co.,  22  Tex.  Civ.  App.  403.  And  so  Fulcher  v.  State, 
28  Tex.  App.  465,  471  :  '  Bill  of  exception  number  five  complains  of 
the  admission  of  the  statements  of  the  wounded  man  made  to  the 
witness  Campbell  about  thirty  minutes  after  he  was  shot,  as  to  the 
circumstances  of  the  shooting  and  who  shot  him.  Deceased  was  shot 
in  the  neck,  and  his  articulation  was  affected  by  the  blood  collecting 
in  his  throat.  About  fifteen  minutes  after  he  was  shot  Campbell 
administered  to  him  some  brandy  and  camphor  to  clear  up  his  throat, 
and  about  fifteen  minutes  afterwards,  when  he  was  able  to  talk, 
deceased  made  the  statements  complained  of.  Under  the  circumstances 
shown  we  are  of  opinion  the  declarations  were  admissible  as  res  gestae. 
Willson's  Crim.  Stats,  s.  1040;  Stagner  v.  The  State,  9  Tex.  App.  440; 
Warren  v.  The  State,  ib.  619  ;  Washington  v.  The  State,  19  Tex.  App. 
521 ;  Pierson  v.  The  State,  21  Tex.  App.  14  ;  Smith  v.  The  State,  ib. 
277  ;  Irby  v.  The  State,  25  Tex.  App.  203.'  And  so  Freeman  v.  The 
State,  40  Tex.  Cr.  Reps.  545.  Compare  Mitchell  v.  The  Territory,  7  Okl. 
527;  Chic,  etc.  R.  Co.  v.  Cummings,  24  Ind.  App.  192;  Earle  v.  Earle, 
11  Allen,  1  ;    I'arkhurst  v.  Krellinger,  69  Vt.  375. 

"  There  is  much  which  Illustrates  the  looseness  above  referred  to, 
in  cases  touching  a  doctrine,  often  laid  down,  as  to  declarations  by 
a  person  in  possession  of  property.  See  McCurtain  v.  Grady,  1  Ind. 
Terr.  107  ;  Elwood  v.  Saterlie,  68  Minn.  173 ;  Rollofson  v.  Nash,  75 
>j^Iinn.  237  ;  Knight  v.  Knight,  178  111.  553,  556 ;  Nodle  v.  Hawthorne, 
107  Iowa,  380 ;  Wiggins  v.  Foster,  8  Kans.  App.  579.  Such  cases  are 
sometimes  explainable  on  the  doctrine  of  declarations  of  a  deceased 
person  against  interest.  Professor  Wigmore  has  thrown  light  on  this 
topic  in  his  edition  of  Greenleaf  (1  Greenl.  Ev.  (16th  ed.),  s.  108). 
See  Ware  v.  Brookhouse,  7  Gray,  454."  Thayer's  Cas.  Ev.  (2d  ed.) 
671,  n.] 


BEDINGFIELD'S  CASE  265 

The  fact  that  a  certain  statement  was  made  under  impres- 
sive circumstances,  —  e.  g.,  a  declaration  by  a  person  in  full 
possession  of  his  faculties  presently  expecting  death,  or 
a  declaration  under  such  circumstances  as  those  attending 
the  woman's  utterance  in  Bedingfield's  Case,  or  the  man's 
in  Insurance  Co.  v.  Mosley,^  —  may  have  a  strong  proba- 
tive tendency,  irrespective  of  any  reliance  upon  the  credit 
of  the  declarant;  but,  as  we  all  know,  the  law  will  exclude 
them  unless  certain  special  grounds  can  be  pointed  out  for 
receiving  them.  One  thing  in  the  common  law  was  con- 
spicuously true  in  all  trials  of  fact,  viz.,  that  an  untrained 
tribunal,  like  the  jury,  was  in  great  danger  of  misusing 
this  sort  of  evidence,  —  of  relying  upon  the  statement  as 
true  because  the  declarant  said  it,  and  not  merely  because 
it  was  said  under  the  special  circumstances.  Accordingly, 
the  law  was  not  satisfied  with  having  a  statement  which  had 
a  probative  force,  drawn  from  the  circumstances  under 
which  it  was  made  and  independent  of  credit  reposed  in 
the'  speaker ;  it  did  not  ask  merely  whether  the  statement, 
in  order  to  have  evidentiary  value,  required  a  reliance  on 
the  credit  of  the  declarant,  —  it  considered  rather  whether 
it  could  be  so  misused.  To  those  who  look  upon  the  law  of 
evidence  as  a  system  elaborated  for  the  mere  discovery  of 
truth,  and  judge  it  by  its  logical  adaptation  to  that  end, 
it  seems  in  this  part  of  it  peculiarly  absurd.  To  those  who 
take  the  more  intelligent  view,  that  it  is  not  merely  a  piece 
of  machinery  for  truth-seeking,  but  one  subsidiary  to  the 
distribution  of  justice,  worked  through  the  agency  of  an 
untrained  tribunal,  and  shaped  to  the  uses  of  that  tribunal 
by  judges  who  were  often  very  distrustful  of  its  capacity 
and  fairness,  it  may  present  a  very  different  aspect.^ 

'  8  Wall.  397. 

-  "  It  will  probably  be  thought,  by  persons  acquainted  with  judicial 
proceedings,  that  juries  do  not,  in  general,  properly  discriminate  be- 
tween hearsay  and  original  evidence.  An  opportunity  of  noticing  this 
fre<]uently  occurs  in  cases  relating  to  the  various  exceptions  to  the 
rule  of  exclusion,  and  more  particularly  where  hearsay  evidence  is  intro- 
duced collaterally,  as  where  it  is  a  part  of  a  confession  of  one  prisoner 
affecting  another  prisoner,  or  where  it  is  contained  in  a  letter  which 


266  LEGAL  ESSAYS 

It  is  not,  then,  to  be  laid  down  that,  when  a  hearsay  state- 
ment has  any  evidentiary  value  independent  of  the  declar- 
ant's credit,  or  even  when  it  has  a  good  deal  of  such  inde- 
pendent value,  it  is  therefore  to  be  received ;  we  have  no 
such  rule  or  principle  in  the  law  of  evidence.  We  do  have, 
on  the  other  hand,  a  rule  aimed  in  general  at  preventing 
the  tribunal  from  using  as  the  basis  of  an  inference  the 
credit  of  any  person  not  examined  under  oath  in  open  court, 
and  which  to  that  end  excludes  all  statements  that  may 
have  support  from  the  credit  of  such  an  unexamined  person ; 
and  then  we  have  exceptions  to  the  rule.  Some  statements 
are  not  included  in  the  rule  simply  because  they  cannot, 
in  their  relation  to  the  case,  —  i.e..  having  regard  to  the 
purpose  for  which  they  are  received,  —  derive  strength  from 
the  credit  of  the  declarant.  The  letting  in  of  these  declara- 
tions is  no  exception  to  the  rule.  But  where  other  declara- 
tions are  admitted,  it  is  under  an  exception  to  the  rule,  and 
not  as  resting  upon  a  principle  independent  of  it.  The  rule, 
then,  relating  to  declarations  which  are  a  part  of  the  res 
gesta,  in  any  sense  in  which  it  belongs  to  the  law  of  evi- 
dence, is  properly  to  be  viewed  as  an  exception  to  the 
hearsay  rule. 

V,  Let  us  now  come  to  the  cases.  What  is  the  import 
of  the  term  res  gesta  as  actually  used  in  the  cases,  and  what 
is  it  to  be  a  part  of  the  res  gesta?  What  rules  or  definitions 
or  discriminations  are  suggested  by  the  cases  as  touching 
the  admissibility  of  hearsay  as  a  part  of  the  res  gesta  f 

1.  In  one  class  of  cases  the  term  is  used  to  indicate  the 
very  matter  in  issue,  —  the  very  ultimate  thing  itself  to 
which  the  controversy  relates.  To  say,  in  such  cases,  when 
it  is  intelligently  said,  that  a  declaration  is  a  part  of  the 
res  gesta,  is  to  say,  with  the  added  emphasis  of  a  Latin 

Is  Introduced  for  a  diflferent  object,  or  where  it  consists  of  a  statement 
of  liearsay  matters  made  in  the  presence  of  a  party  to  the  suit.  In  such 
cases,  the  hearsay  evidence  generally  has  much  too  strong  an  effect  upon 
the  Jury,  however  the  Judge  may  caution  them  not  to  give  weight  to 
the  evidence  as  proving  the  truth  of  the  facts  therein  stated."  — 
Phliiipps  and  Amos,  I5v.  210. 


BEDINGFIELD'S  CASE  267 

expression,  that  the  declaration  must  be  received  simply 
because  it  is  the  very  thing  the  parties  are  disputing  about. 
If  it  be  but  one  element  of  the  thing  in  issue,  it  belongs 
to  this  class  none  the  less.  It  was  with  reference  to  this 
sort  of  thing  that  Mr.  Justice  Willes  once  said :  "  I  have 
repeatedly  heard  Lord  Wensleydale  say  the  objection  to 
hearsay  evidence  does  not  apply  to  proof  of  an  act  done 
or  of  a  direction  to  do  a  thing;  you  can't  prove  it  in  any 
other  way."  ^  In  proving  a  slander,  or  a  contract,  or 
knowledge  of  a  certain  fact  on  the  part  of  another  as  made 
known  to  him  by  the  statement  of  a  third  person ;  in  prov- 
ing the  ownership  of  personal  property,  —  where  title  may 
pass  merely  by  oral  communication;  in  proving  the  fact 
of  the  delivery  of  goods  at  common  law  or  of  "  actual 
receipt"  under  the  Statute  of  Frauds,  where,  although 
there  be  no  change  in  the  custody  of  the  goods,  there  may, 
as  some  courts  hold,  be  a  change  in  the  possession  of  them, 
by  the  simple  act  of  an  oral  undertaking  to  hold  in  a 
changed  character,  —  in  such  case  the  proof  of  the  words 
used,  whether  those  of  a  party  to  the  litigation  or  of  a  third 
party,  may  be  the  proof  of  the  very  facts  in  issue.  What- 
ever the  parties  have  properly  put  in  issue  by  their  pleadings 
may  be  proved.  It  is  often  not  easy  to  say  what  is  involved 
in  the  pleadings,  or  whether  a  fact  is  strictly  a  fact  in  issue, 
or  an  evidentiary  fact;  but  when  we  have  a  fact  in  issue, 
—  whether  that  fact  be  a  reported  declaration,  or  anything 
else,  —  it  is  not  to  be  made  a  question  in  the  law  of  evidence 
whether  one  may  prove  it  or  not;  of  course  he  may.  It 
is  a  misconception,  and  it  leads  to  confusion,  to  discuss 
such  a  question  under  the  head  of  hearsay,  or  any  exception 
to  hearsay. 

We  are  to  take  notice,  then,  that  this  is  one  sense  of  the 
term  res  gesta;  viz.,  the  very  thing  which  is  controverted ; 
and  that,  in  this  use  of  it,  to  say  that  a  declaration  is 


'  Turner  v.  Hutchinson,  3  L.  T.  Rep.  N.  s.  815.     [Cf.  Blanchard  v. 
Child,  7  Gray,  155.] 


268  LEGAL  ESSAYS 

a  part  of  the  res  gesta  —  of  the  thing  in  issue  —  is  an 
emphatic  way  of  closing  any  discussion  upon  the  question 
of  its  admission.  Whatever  difference  there  may  be  in  the 
law  of  evidence  between  declarations  and  other  facts  con- 
sidered as  evidentiary  matter,  there  is  no  particle  of  dif- 
ference between  them  considered  as  the  very  thing  in 
controversy.^ 

2.  The  term  res  gesta  is  freely  used  in  another  class  of 
cases  where  the  specific  question  is  whether  a  party  to  the 
suit  shall  be  affected  with  responsibility  for  the  declaration 
of  another ;  not  merely  whether  it  may  be  used  as  evidence 
against  him,  but  whether  it  shall  be  so  used  as  having  been 
brought  home  to  him,  and  whether  he  shall  be  chargeable 
with  it  as  if  it  were  his  own.^  When  the  inquiry  is 
whether  the  utterance  of  an  agent,  or  a  co-conspirator,  is 
receivable  against  a  party,  and  it  is  said,  in  the  case  of 
the  agent,  that  it  must  have  been  made  in  and  about  the 
business  on  which  the  agent  was  employed,  and  while  actu- 
ally engaged  in  that  business ;  and,  of  a  co-conspirator,  that 
he  must  have  made  his  declaration  while  engaged  in  the 
common  enterprise  and  regarding  that,  —  in  such  cases  it  is 
common  to  express  this  idea  by  saying  that  the  declaration 
must  be  made  as  a  part  of  the  res  gesta;  and  if  it  is  not 
so  made,  it  is  deemed  to  be  res  inter  alios  gesta.  Now  it  is 
obvious,  on  a  little  reflection,  that  to  settle  this  question 


^  Partly  in  explanation  of  what  Is  here  said,  and  partly  as  supple- 
mentary to  it,  it  should  be  added  that  there  are  many  cases  where  that 
which  is  to  be  proved  is  In  legal  effect  an  ultimate  fact,  although  not 
so  in  form.  Wlienever  there  exists  what  is  awkwardly  called  a  "  con- 
clusive presumption,"  the  proof  of  the  facts  which  are  the  basis  of 
the  presumption  Is  in  legal  effect  the  proof  of  what  Is  presumed.  And 
again,  —  what  is  not  always  so  obvious,  —  whenever  the  substantive 
law  has  a  rule  of  merely  prima  facie  presumption,  the  same  thing  Is 
true ;  if  you  wish  to  prove  a  sale  of  specific  goods,  you  may  prove  the 
oral  communication,  simply  because  the  common  law  of  sales  annexes 
to  the  fact  of  the  oral  communication  this  consequence,  of  a  completed 
transfer  of  ownership.  It  is  not  material,  for  the  purposes  of  our 
question,  that  the  consequence  Is  only  annexed  prima  facie;  it  is  finally 
annexed,  if  nothing  appear  to  the  contrary. 

"  [See  United  States  v.  Gooding,  12  Wheat.  460,  470;  Vlcksburg 
Railroad  v.  O'Brien,  119  U.  S.  99;  Texas,  etc.  Ry.  Co.  v.  Lester,  75 
Tex.  56.  Compare  McNicholas  v.  N.  E.  Tel.  &  Tel.  Co.,  195  Mass.  and 
Conklin  v.  Consol.  Uy.  Co.  (S.  J.  C.  Mass.,  Oct.  15,  1907).] 


BEDINGFIELD'S  CASE  269 

adversely  to  the  admissibility  of  that  which  is  offered  in 
evidence,  is  really  to  settle  a  question  in  the  law  of  agency 
or  in  the  law  regulating  conspiracy,  —  a  question  in  sub- 
stantive law.  To  hold  that  a  thing  is  res  inter  alios  gesta 
is  to  hold  that  it  cannot  be  used  in  evidence  against  a  party 
on  a  particular  ground,  viz.,  the  ground  of  his  being  respon- 
sible for  it;  but  this  is  only  reducing  it  to  the  level  of  an 
act  or  declaration  proceeding  from  a  stranger,  and  the  ques- 
tion of  evidence  still  remains  unsettled,  whether,  being  such, 
it  is  admissible.  To  say,  on  the  other  hand,  that  I  am 
responsible  for  a  given  declaration  by  my  agent  or  co- 
conspirator, is  to  say  that  the  declaration  shall  be  dealt 
with  as  if  it  were  my  own ;  but  the  question  of  evidence 
still  remains  unsettled  whether,  being  my  own,  it  is  admis- 
sible in  evidence,  and  for  what  purpose  and  with  what 
effect. 

Observe,  then,  that  the  rule  which  says  that  a  man  shall 
be  chargeable  with  the  acts  and  declarations  of  his  agent 
or  fellow-conspirator  is  not  a  rule  of  evidence ;  and  when 
in  stating  and  applying  this  rule  it  is  said  that  the  agent's 
declaration  must  have  been  made  in  and  about  his  prin- 
cipal's business,  while  actually  engaged  in  it,  and  as  a  part 
of  the  res  gesta,  —  or  again,  when  it  is  said  of  a  conspirator's 
declaration,  offered  against  his  fellow-conspirator,  that  it 
must  have  been  made  while  he  was  actually  engaged  in  the 
common  enterprise,  about  the  affairs  of  it,  and  as  a  part 
of  the  res  gesta,  —  the  Latin  phrase  adds  nothing ;  it  is 
used  as  a  compact  expression  for  the  business,  as  regards 
which  the  law  for  certain  purposes  identifies  the  two  con- 
spirators or  the  principal  and  agent.  In  such  cases,  evi- 
dently, the  declaration  may  be  about  a  past  fact  as  well 
as  a  present  one,  so  long  as  it  comes  up  to  the  above-named 
requirements. 

3.  Stephen,  in  his  various  writings  upon  the  law  of  evi- 
dence, dispenses  with  the  term  "  circumstantial  evidence," 
and,  limiting  the  word  evidence  to  the  statements,  oral  or 
written,  of  witnesses,  lays  it  down  that  there  are  two  classes 


270  LEGAL  ESSAYS 

of  facts  which  may  be  proved,  viz.,  facts  in  issue  and  facts 
relevant  to  the  issue.  It  is  practically  more  convenient 
to  use  the  term  evidentiary  ^  facts.  We  have  seen  that 
a  party  may,  of  course,  prove  any  declaration  which  is  a 
fact  in  issue.  Why  shall  we  not  also  say  that  one  may, 
of  course,  prove  any  declaration  that  is  a  fact  relevant  to 
the  issue,  —  an  evidentiar}'  fact  ?  Because  this  is  precisely 
where  the  hearsay  rule  comes  in  with  its  prohibition.  The 
fact  of  a  declaration  may  have  an  evidentiary  quality,  but, 
by  the  rule  against  hearsay,  as  has  been  pointed  out  before, 
such  facts  are  discriminated  from  other  evidentiary  facts; 
they  are  not  admissible  where  other  facts  of  no  greater 
probative  force  would  be.  In  other  words,  while  the  hear- 
say rule  does  not  forbid  the  proving  of  any  of  the  ultimate 
facts  in  the  case,  it  does  forbid  the  proving  of  a  certain 
class  of  evidentiary  facts.^  Observe,  then,  that  the  hear- 
say rule  operates  in  two  ways :  (a)  It  forbids  using  the 
credit  of  an  absent  declarant  as  the  basis  of  an  inference, 
and   (&)   it  forbids  using  in  the  same  way  the  mere  evi- 

'  One  of  Bentham's  words,  which,  unlike  many  of  those  ugly  crea- 
tions, has  passed  Into  good  legal  usage;    6  Bentham's  Works.  208. 

*  ["No  doubt,  In  point  of  reason,  hearsay  statements  often  derive 
much  credit  from  the  circumstances  under  which  they  are  made;  say, 
e.  g..  from  the  fact  of  being  made  under  oath,  or  under  impressive 
conditions,  as  being  against  interest,  or  made  under  strong  Inducements 
to  say  the  contrary,  or  as  part  of  a  series  of  statements  or  a  class 
of  them  which  are  usually  careful  and  accurate,  and  the  like ;  credit 
amply  enough  in  point  of  reason  to  entitle  them  to  be  received  as 
evidence,  when  once  the  absence  of  the  perceiving  witness  is  accounted 
for ;  and  it  would  in  reason  have  been  quite  possible  to  shape  our  law 
in  the  form  that  hearsay  was  admissible,  as  secondary  evidence,  when- 
ever the  circumstances  of  the  case  alone  were  enough  to  entitle  It  to 
credit,  irrespective  of  any  credit  reposed  in  the  speaker.  This  point 
of  view  is  forever  suggesting  Itself  in  that  part  of  the  subject  relating 
to  declarations  which  are  a  part  of  some  admissible  fact,  —  of  the 
res  (jesta,  as  the  phrase  is.  These  are  often  spoken  of  as  parts  of 
a  mass  of  circumstantial  facts  described  as  res  gestae,  all  evidential, 
supporting  and  supported  by  each  other  in  their  tendency  to  prove 
some  principal  fact ;  instead  of  being  regarded,  as  they  should  be, 
as  parts  of  that  fact  itself,  pars  rei  gestae,  lying  under  the  curse  of 
hearsay,  but  received,  by  way  of  exception,  on  account  of  this  special 
intimacy  of  connection  with  the  admissible  fact.  This  part  of  the 
subject  presents  an  instructive  spectacle  of  confusion,  resulting  from 
the  desire,  on  the  one  hand,  to  hold  to  the  just  historical  theory  of 
our  cases ;  and,  on  the  other,  to  resort  to  first  principles,  without  being 
aware  of  the  size  and  complexity  of  the  task  which  is  thus  uncon- 
sciously entered  upon."     Thayer's  Prel.  Treat.  Evld.  523.] 


BEDINGFIELD'S  CASE  271 

dentiary  fact  of  the  statement  as  having  been  made  under 
such  and  such  circumstances.  Eelief  has  always  been  had 
from  the  operation  of  the  rule  in  certain  cases  when  the 
declarant  was  dead,  but  those  cases,  although  covering 
a  good  deal  of  ground,  have  been  rigidly  defined:  it  has 
never  been  the  English  law  that  the  declarations  of  de- 
ceased persons,  generally,  should  be  received.  It  is  otherwise 
in  Scotland,  and  it  has  been  the  urgent  contention  of  some 
persons  that  the  English  law  should  admit  the  declaration 
of  deceased  persons  generally.^  In  an  important  English 
case  growing  out  of  the  loss  of  Lord  St.  Leonards's  will, 
several  of  the  judges  took  occasion  to  express  their  opinion 
that  it  was  to  be  desired  that  the  English  law  should  admit 
all  declarations  of  deceased  persons  who  were  shown  to 
have  had  special  means  of  knowledge  on  the  subject.^  but 
undoubtedly  such  is  not  the  law  as  yet,  either  there  or,  so 
far  as  the  writer  is  advised,  in  any  jurisdiction  in  this 
country.3  Not  only  is  it  necessary  that  the  declarant 
should  be  dead,  but  also  that  certain  specific  evidentiary 
circumstances  should  exist,  e.  g.,  that  the  declaration  should 
have  been  against  the  pecuniary  or  proprietary  interest 
of  the  declarant ;  the  death  alone  is  not  enough  without  the 

^  Appleton,  Evidence,  c.  xil. 

2  In  this  case  it  was  lield  in  the  Court  of  Appeal  that  the  declara- 
tionss  of  a  deceased  testator  were  admissible  to  prove  the  contents  of 
a  lost  will,  — •  overruling  a  previous  decision,  and  plainly  resorting, 
as  it  would  seem,  to  judicial  legislation.  The  Lord  Justice  Mellish, 
while  concurring  in  the  result,  did  not  concur  on  this  point.  He  said  : 
"  If  I  was  asked  what  I  think  it  would  be  desirable  should  be  evidence, 
I  have  not  the  least  hesitation  in  saying  that  I  think  it  would  be  a 
highly  desirable  improvement  in  the  law  if  the  rule  was,  that  all  state- 
ments made  by  persons  who  are  dead  respecting  matters  of  which  they 
had  a  personal  knowledge,  and  made  ante  litem  motnm,  should  be  ad- 
missible. There  is  no  doubt  that  by  rejecting  such  evidence  we  do 
reject  a  most  valuable  source  of  evidence.  But  the  difficulty  I  feel 
is  this,  that  I  cannot  satisfactorily  to  my  own  mind  find  any  dis- 
tinction between  the  statement  of  a  testator  as  to  the  contents  of  his 
will,  and  any  other  statement  of  a  deceased  person  as  to  any  fact 
peculiarly  within  his  knowledge,  which,  beyond  all  question,  as  the 
law  now  stands,  we  are  not  as  a  general  rule  entitled  to  receive."  — 
Sugden  v.  St.  Leonards,  1  P.  D.  at  p.  250.  [For  further  criticisms  of 
Sugden  v.  St.  Leonards  see  Woodward  v.  Goulstone,  11  App.  Cas  469  ; 
Throckmorton  v.  Holt,  180  U.  S.  552  ;  Matter  of  Kennedy,  167  N.  Y. 
163.] 

'   [See  note,  p.  303  infra.] 


272  LEGAL  ESSAYS 

evidentiary  circumstances,  —  the  evidentiary  circumstances 
are  not  enough  without  the  death.^ 

But  besides  this  mode  of  relief  against  the  hearsay  rule 
there  has  always  been  another,  which  is  not  restricted  in 
its  application  to  the  declarations  of  deceased  persons,  but 
applies  also  to  those  of  the  living.  While  this  sort  of 
exception  to  the  hearsay  rule  has  always  existed,  it  has 
never  been  well  worked  out.  The  characteristic  of  it  is, 
that  the  declaration  should  be  made  at  the  same  time  with 
the  thing  which  it  imports,  —  the  thing  which  is  to  be 
proved,  whether  an  ultimate  or  an  evidentiary  fact.  An 
English  judge  once  said  that  he  hardly  ever  ended  a  day 
of  trying  cases  in  court  without  thinking  during  some  part 
of  it,  amidst  the  conflict  of  testimony,  that  he  would  give 
almost  any  price  for  a  memorandum  in  writing  made  by 
the  parties  at  the  time  of  the  transaction.  The  exception 
to  the  hearsay  rule  which  is  now  mentioned  takes  notice 
of  one  of  these  strong  elements  of  authenticity,  contem- 
poraneousness;  it  deals,  however,  not  with  memoranda 
signed  by  the  parties,  but  with  statements,  oral  or  written, 
made  by  those  present  when  a  thing  took  place,  made  about 
it,  and  importing  what  is  present  at  the  very  time,  —  pres- 
ent, either  in  itself  or  in  some  fresh  indications  of  it,  to 
the  faculties  of  the  witness  as  well  as  of  the  declarant.^ 

'  Why  these  exceptions  should  have  been  made  and  others  not  made 
is  to  be  explained,  not  by  any  deep  examination  Into  reasons  that  may 
distinguish  one  class  of  cases  from  another;  but  historically,  —  as 
a  mere  matter  of  fact  and  of  precedent.  A  single  exception  was 
started,  and  then  followed  another  case,  and  that  was  enough  ;  then 
came  in  judicial  language  like  that  with  which  Lord  Blackburn  closed 
his  opinion  in  a  case  on  hearsay  in  the  House  of  Lords  last  year : 
"  But  I  base  my  judgment  on  this,  that  no  case  has  gone  so  far  as 
to  say  that  such  a  document  could  be  received  ;  and  clearly,  unless 
it  is  to  be  brought  within  some  one  of  the  exceptions,  it  would  fall 
within  the  rule  that  hearsay  evidence  is  not  admissible."  —  Sturla  v. 
Freccia,  .5  App.  Cas.  62.S,  647. 

'  Witt  V  Witt,  :i  Swab.  &  Trist.  143.  No  doubt  there  are  cases 
which  admit  other  writings,  following,  c.  fj.,  Greenleaf's  classification 
of  entries  in  the  course  of  business  as  being  a  part  of  the  res  f/esta,  or 
dealing  with  agency  cases  under  this  head.  There  are  also  cases, 
not  thus  explainable,  like  those  bankruptcy  cases,  where  letters  written 
during  an  absence  are  admissible  to  sliow  the  purpose  of  the  absence. 
But  the  writer  is  disposed  to  state  the  doctrine  as  it  is  given  in  the 
text,  leaving  such  cases  to  be  dealt  with  on  their  own  circumstances. 


BEDINGFIELD'S  CASE  273 

The  general,  roughly  stated  proposition  is,  that  statements 
so  made  are  received  as  a  part  of  the  thing,  of  the  res  gesta, 
with  which  they  are  so  closely  connected,  and  as  being  in 
themselves  good  evidentiary  facts,  —  good  "  circumstantial 
evidence,"  to  use  the  ordinary  phrase.  In  other  words  the 
common-law  difference  between  declarations  and  other  evi- 
dentiary facts  now  vanishes,  —  it  being  always  understood 
that  they  are  not  to  be  taken  upon  the  credit  of  the  declar- 
ant.i  Two  classes  of  these  evidentiary  and  illustrative 
declarations,  which  do  not  in  strictness  constitute  a  res 
gesta,  but  are  a  part  of  it  only  in  the  sense  of  illustrating 
or  filling  it  out,  must  now  be  discriminated:  1,  such  as 
are  part  of  the  ultimate  fact ;  and,  2,  such  as  are  a  part  of 
an  evidentiary  fact. 

(1)  Taking,  then,  first  those  which  attend  the  ultimate 
fact: 

(a)  A  simple  application  of  the  principle,  marked  by 
strong  good  sense,  is  that  which  appears  to  have  been  made 
in  Thompson  and  Wife  v.  Trevanion,  Skinner,  402  (1693), 
by  Chief  Justice  Holt,  who,  at  nisi  prius.  in  an  action  of 
trespass  for  an  assault  on  the  female  plaintiff,  "  allowed 
that  what  the  wife  said  immediately  upon  the  hurt  re- 
ceived, and  before  that  she  had  time  to  devise  or  contrive 
anything  for  her  own  advantage,  might  be  given  in  evi- 
dence." It  is  true  that  this  fragment  of  a  report  (the 
above  is  all  we  have)  leaves  the  case  open  to  criticism; 
as  Chief  Justice  Cockbum  says  in  his  pamphlet  (p.  10)  : 
"  What  the  facts  in  the  case  were  we  are  not  informed,  or 
what  the  statements  of  the  wife  had  been,  or  what  were 
the  grounds  of  the  Chief  Justice's  ruling."  But  the 
language  of  the  case  goes  to  justify  the  traditional  inter- 
pretation of  it,  that  it  is  an  application  of  the  principle 
that  a  declaration  made  contemporaneously  with  a  fact, 
and  about  the  fact,  may  be  received  as  evidence  of  the 

It  will  be  remembered,  that  the  present  undertaking  Is  not  that  of 
a  full  discussion  of  the  hearsay  rule  and  all   its  exceptions. 

1  [In  Professor  Thayer's  copy  of  the  article  these  last  words  are 
annotated  by  him  as  follows  "  ?  no  such  discrim."] 

18 


274  LEGAL  ESSAYS 

truth  of  what  is  declared.  Such  (as  Mr.  Taylor  has  pointed 
out)  was  Lord  Ellenborough's  interpretation  of  it  in  Aveson 
V.  Kinnaird,  6  East.  188  (1806).  Counsel  had  said: 
"  Declarations  by  the  wife  upon  her  elopement  .  .  .  accus- 
ing him  of  misconduct  could  not  be  given  in  evidence 
against  him  in  an  action  against  the  adulterer  .  .  ,  "; 
and  thereupon  the  report  of  the  case  goes  on  :  "  Lord  Ellen- 
horough.  —  It  is  not  so  clear  that  her  declarations  made 
at  the  time  would  not  be  evidence  under  any  circumstances. 
If  she  declared  at  the  time,  that  she  fled  from  immediate 
terror  of  personal  violence  from  the  husband,  I  should  admit 
the  evidence ;  though  not  if  it  were  a  collateral  declaration 
of  some  matter  which  happened  at  another  time.  His  lord- 
ship also  referred  to  the  case  of  Thompson  et  uxor  v.  Tre- 
vanion,  Skin.  403,  where  .  .  .  Lord  C.  J.  Holt  allowed  .  .  . 
to  be  given  in  evidence  as  a  part  of  the  res  gestae." 

It  is  evident  that,  in  such  cases,  difficult  questions  may 
arise  as  to  contemporaneousness.  There  can  seldom  be  a 
perfect  coincidence  of  time,  but  the  expression,  as  we  have 
already  seen  in  considering  the  bankruptcy  cases,  is  not 
construed  with  absolute  exactness;  the  rule  calls  for  a 
declaration  which  is  made  either  while  the  matter  in  ques- 
tion is  actually  going  on,  or  immediately  before  or  after 
it.  Our  Latin  phrase  is  here  resorted  to,  and  perhaps  helps 
to  a  degree  of  certainty;  the  nearness  in  time  should  be 
such  that  the  declaration  may  in  a  fair  sense  be  said  to 
be  a  part  of  the  res  gesta,  i.  e.,  a  part  of  the  transaction 
of  which  it  purports  to  give  an  account.  There  are  two 
cases  in  Massachusetts  ^  which  may  be  referred  to  as 
illustrating  what  is  legitimate  and  what  is  not  legitimate 
in  this  class  of  cases.  In  Commonwealth  v.  McPike, 
3  Cush.  181  (1849),  on  a  charge  of  manslaughter  against 
the  defendant  for  killing  his  wife,  a  witness  was  allowed 
to  testify  that  the  deceased,  Just  before  she  died,  told  him 
that  defendant  had  stabbed  her,  —  although  the  statement 

'  Both  of  them  are  canvassed  In  the  leading  case  of  Insurance  Co. 
V.  Mosley,  8  Wall.  397. 


BEDINGFIELD'S  CASE  275 

was  made  after  a  very  considerable  interval  of  time;  this 
interval  is  not  exactly  stated,  but  it  was  great  enough  to 
allow  the  deceased,  after  receiving  the  wound,  to  go  up 
stairs  and  despatch  a  messenger  for  the  doctor,  and  then 
to  allow  the  witness,  after  meeting  this  messenger  on  the 
stairs,  to  go  after  a  watchman,  return  to  the  house,  and  go 
up  to  the  room  where  the  deceased  lay.^  That  decision 
went  a  great  way,  and  it  is  conceived  that  it  is  indefensible 
in  principle.  To  include  that  declaration  as  a  part  of  the 
res  gesta  seems  to  call  for  a  definition  of  the  term  which 
would  take  in  all  declarations  that  were  near  the  time.  The 
other  case  is  that  of  Commonwealth  v.  Hackett,  2  Allen, 
136  (1861);  on  an  indictment  for  murder  a  witness  was 
allowed  to  testify  that  on  the  street,  in  the  night,  he  heard 
the  deceased  cry  out,  "  I  'm  stabbed  " ;  that  he  at  once  went 
to  him  and  reached  him  in  twenty  seconds,  and  that  the 
deceased  said :  "  I  'm  stabbed,  I  'm  gone ;  Dan  Hackett 
(the  defendant)  has  stabbed  me."  The  evidence  was  that 
the  defendant  had  suddenly  come  upon  the  deceased,  had 
stabbed  him  twice,  and  had  run  away.  This  case  was 
elaborately  considered ;  the  court  gave  it  "  the  most  anxious 
and  careful  consideration,  not  only  on  account  of  (its 
importance),  but  because  the  exception  is  urged  with  great 
earnestness  and  apparent  confidence."  The  court  (Bigelow, 
C.  J.)  said  that  the  rule  in  regard  to  declarations  as  a  part 
of  the  res  gesta  has  been  often  loosely  administered,  but 
that  "  the  tendency  of  recent  decisions  has  been  to  restrict 
within  narrow  limits  this  species  of  testimony.^  .  .  .  We 
are  disposed  to  apply  the  rule  strictly,  and  to  exclude  every- 
thing which  does  not  clearly  come  within  its  just  and  proper 

'  The  head-note  in  this  case  is  inaccurate.  It  shortens  the  time 
materially. 

*  Not  too  much  importance  should  be  attached  to  such  remarks. 
You  can  find  them  all  ways.  "  The  tendency  of  recent  adjudications 
is  to  extend,  rather  than  to  narrow,  the  scope  of  the  doctrine  "  ;  per 
Swayne,  J.,  in  8  VS^all.  at  p.  408.  —  "  Unfortunately  the  habits  of  man- 
kind are  not  such  at  present  as  to  lead  any  one  to  desire  any  extension 
of  the  privilege  of  having  evidence  given  and  taken  as  part  of  the  res 
gestae  of  that  which  it  is  sought  to  prove  "  ;  per  Lord  Hatherley,  in 
Sturla  V.  Freccia,  5  App.  Cas.  623,  689. 


276  LEGAL  ESSAYS 

limitations."  At  the  same  time  (the  court  went  on),  "to 
exclude  it  here  would  be  practically  to  say  that  no  declara- 
tion or  statement,  however  near  the  principal  fact,  or  how- 
ever important  as  giving  it  color  and  significance,  could 
ever  be  admitted/'  "  The  true  test  of  the  competency  of 
the  evidence  is  not,  as  urged  by  the  counsel  for  the  defend- 
ants, that  the  declaration  was  made  after  the  act  was  done, 
and  in  the  absence  of  the  defendant/  These  are  important 
circumstances,  and  ...  if  they  stood  alone,  would  be  quite 
decisive.  But  they  are  outweighed  by  the  other  facts  in 
proof,  from  which  it  appears  that  they  were  uttered  after 
the  lapse  of  so  brief  an  interval,  and  in  such  connection 
with  the  principal  transaction,  as  to  form  a  legitimate  part 
of  it,  and  to  receive  credit  and  support  as  one  of  the  cir- 
cumstances which  accompanied  and  illustrated  the  main 
fact  which  was  the  subject  of  inquiry  before  the  jury." 

That  decision  seems  to  be  founded  in  sound  principle 
and  is  supported  by  good  authority.  It  will  be  observed 
that  the  witness  heard  the  first  cry ;  but  it  is  the  closeness 
of  the  declaration  to  the  fact  in  point  of  time,  coupled  with 
its  own  import,  that  gives  it  its  legally  recognized  quality 
as  proof ;  although  in  form  of  words  the  statement  is  narra- 
tive, yet,  as  the  court  remark,  it  is  narrative  merely  in  form, 
and  the  argument  against  it  on  this  ground  "  would  be 
equally  strong  if  the  words  had  been  uttered  as  soon  as  the 
knife  had  been  withdrawn  from  the  body." 

Let  us  now  look  at  the  leading  case  of  Insurance  Com- 
pany V.  Mosley,  8  Wall.  397  (1869),  a  case  which  has 
troubled,  not  only  Chief  Justice  Cockburn  and  Mr.  Taylor, 
but  many  intelligent  lawyers  in  this  country.  It  was  an 
action  of  assumpsit  on  a  policy  of  insurance  issued  by  the 
plaintiff  in  error  to  the  defendant  upon  the  life  of  her  hus- 
band. The  case  came  up  by  writ  of  error  to  one  of  the 
Circuit  Courts  of  the  United  States.     The  question  was 

'  This,  It  will  be  observed,  Is  a  repudiation  of  the  test  proposed 
by  Chief  Justice  Cockburn  for  criminal  cases,  viz.,  the  test  of  the 
presence  or  continuing  action  of  the  accused. 


BEDINGFIELD'S  CASE  277 

as  to  the  soundness  of  two  rulings  in  the  court  below  upon 
points  of  evidence.  The  policy  insured  against  death  re- 
sulting from  personal  injury,  "  caused  by  some  outward 
and  visible  means " ;  it  was  expressly  provided  that  the 
policy  should  not  extend  to  any  injury  "  caused  by  or  arising 
from  natural  disease."  The  declaration  alleged  that  the 
deceased  died  from  injuries  that  resulted  from  falling  down 
a  pair  of  stairs.  The  defendants  (below)  pleaded  the  gen- 
eral issue.  The  question  was  whether  the  cause  of  the 
deceased's  death  was  accident  or  disease.  He  was  "  in  his 
usual  health  "  until  a  certain  night  when,  after  having  gone 
to  bed,  he  got  up  and  went  down  stairs;  he  returned  ill 
and  complained  of  having  had  a  fall,  describing  his  symp- 
toms ;  and  he  continued  ill  for  three  or  four  days,  until  he 
died.  The  testimony  which  was  objected  to  was:  (1)  that 
of  Mrs.  Mosley,  giving  the  declaration  of  her  husband.  She 
testified  that  he  got  up  between  twelve  and  one  o'clock  at 
night  and  went  down  stairs  to  the  privy;  she  did  not  know 
how  long  he  was  gone ;  when  he  came  back  he  said  he  had 
fallen  down  the  back  stairs,  had  hit  and  hurt  the  back  of 
his  head,  and  almost  killed  himself;  his  voice  trembled 
so  as  to  attract  her  attention  at  once;  he  complained,  and 
appeared  to  be  in  pain,  and  was  sick,  and  she  was  up  with 
him  all  night.  On  the  next  morning  he  said  he  "  felt  bad," 
and  fainted.  ( 2 )  The  testimony  of  the  son  of  the  deceased, 
giving  certain  declarations  of  his  father,  was  also  objected 
to  but  received.  He  testified  that  he  slept  in  the  lower  part 
of  the  building;  that  at  about  twelve  o'clock  of  the  night 
in  question  he  saw  his  father  "  lying  with  his  head  on  the 
counter  and  asked  him  what  was  the  matter;  he  replied 
that  he  had  fallen  down  the  back  stairs  and  hurt  himself 
very  badly.  .  .  .  That  on  the  day  after  the  fall,  his  father 
said  he  felt  very  badly,  and  that  if  he  attempted  to  walk 
across  the  room  his  head  became  dizzy;  on  the  following 
day  he  said  he  was  a  little  worse  if  anything."  ISTobody 
testified  to  seeing  the  deceased  fall.  The  majority  of  the 
court,  Swayne,  J.,  giving  the  opinion,  state  the  questions 


278  LEGAL  ESSAYS 

to  be  whether  the  court  erred  in  admitting  the  declarations 
of  the  deceased  (1)  as  to  his  bodily  injuries  and  pains,  and 
(2)  to  prove  that  he  had  fallen  down  stairs.  The  first  class 
of  declarations  they  readily  conclude  to  be  admissible,  as 
being  the  usual  expressions  of  such  feelings,  and  as  relat- 
ing wholly  to  what  was  present.  The  other  question  is 
answered  in  the  same  way,  on  the  ground  that  the  declara- 
tions were  made  immediately  or  very  soon  after  the  event, 
—  some  of  them  before  the  deceased  returned  to  his  room, 
and  the  others  upon  reaching  it.  Both  declarations  are 
conceived  to  be  "  a  part  of  the  res  gestae."  "  In  the  com- 
plexity of  human  affairs,"  say  the  court,  "  what  is  done  and 
what  is  said  are  often  so  related  that  neither  can  be  detached 
without  leaving  the  residue  fragmentary  and  distorted.  .  .  . 
Here  the  principal  fact  is  the  bodily  injury.  The  res 
gestae  are  the  statements  of  the  cause  made  by  the  assured 
almost  contemporaneously  with  its  occurrence,  and  those 
relating  to  the  consequences  made  while  the  latter  were 
subsisting  and  in  progress.  Where  sickness  or  affection  is 
the  subject  of  inquiry,  the  sickness  or  affection  is  the  prin- 
cipal fact.  The  res  gestae  are  the  declarations  tending  to 
show  the  reality  of  its  existence  and  its  extent  and  char- 
acter." Seven  cases  are  relied  upon,  including  Aveson  v. 
Kinnaird,  Commonwealth  v.  McPike,  Thompson  v.  Tre- 
vanion,  and  R.  v.  Foster. 

Mr.  Justice  Clifford  (with  whom  Nelson,  J.,  concurred), 
dissented,  in  an  opinion  which  is  devoted  to  a  consideration 
of  the  declarations  as  evidence  to  prove  the  falling  down 
stairs.  It  is  insisted  that  the  declarations  were  not  con- 
temporaneous with  that  fact.  The  case  of  Com.  v.  McPike 
is  condemned,  as  inconsistent  with  all  other  Massachusetts 
cases;  Thompson  v.  Trevanion,  and  R.  v.  Foster,  as  very 
slightly  reported,  as  disapproved  by  Roscoe,  in  "  his  valu- 
able treatise  on  the  Law  of  Evidence,"  and  as  inconsistent 
with  all  the  tests  laid  down  in  Taylor.^ 

'  Observe  that  they  are  both  approved  by  Taylor  not  only  In  his 
treatise,  but  In  his  pamphlet.  And  for  his  comments  on  "  Roscoe," 
Bee  ante,  p.  212. 


BEDINGFIELD'S  CASE  279 

It  seems  difficult  to  support  this  case  upon  the  facts  re- 
ported, in  so  far  as  it  admits  the  declarations  as  to  the  fact 
of  falling  down  stairs.  There  is  nothing  whatever  to  show 
how  long  the  interval  was  between  the  going  down  of  the 
deceased  and  his  return,  and  nothing  definite  to  show  the 
interval  between  his  going  down  and  the  interview  with 
the  son.  There  is  no  evidence  that  either  the  son  or  the 
wife,  or  anybody,  heard  the  fall;  and  the  wife  says  ex- 
pressly that  "  she  did  n't  know  how  long  he  was  gone  " ; 
the  interval  may  have  been  five  minutes,  or  fifteen,  or  thirty. 
It  seems  impossible  to  say  that  such  a  declaration  is  shown 
to  be  contemporaneous  with  the  cause  of  the  injury,  —  so 
near  it  that  it  may  fairly  be  called  a  part  of  it;  yet  the 
court  make  the  declaration  admissible,  as  being  connected 
with  the  "  bodily  injury,"  and  as  stating  the  cause  of  it 
"  almost  contemporaneously  with  its  occurrence."  ^  Its  re- 
lation to  the  injuries  that  followed  the  original  cause  of 
trouble,  as  being  an  explanation  of  them,  Avill  be  considered 
under  a  different  head. 

On  the  other  hand,  the  declaration  of  Mrs.  Rudd  in 
Bedingfield's  Case  seems  admissible.^  It  was  made,  as  in 
the  case  of  Com.  v.  Hackett,  immediately  after  the  injury. 
The  evidence  (collating  the  fuller  details  of  the  "Times" 
report  with  those  in  Cox)  was  that  Bedingfield  had  gone 

'  The  reader  will  have  remarked  in  this  case  the  court's  exposition 
of  the  Latin  term.  This  seems  to  be  traceable  to  Starkie,  ante,  p.  246. 
Compare  Swayne,  J.,  in  Beaver  v.  Taylor,  1  Wall.  642 ;  and  Fletcher, 
J.,  in  Lund  v.  Tyngsborough,  9  Cush.  42.  The  counsel  for  plaintiff  in 
error  in  Ins.  Co.  v.  Mosley,  had  said  (p.  410)  :  "Res  gestae  are  the 
surrounding  facts  of  a  transaction  .  .  .  declarations  accompanying  an 
act  explanatory  of  that  act  are  res  gestae.  They  are  the  surrounding 
facts  explanatory  of  an  act  or  showing  a  motive  for  acting.  But  the 
principal  fact  must  be  first  established,  and  until  it  is  established 
surrounding  facts  are  not  admissible ;  and  certainly  exhibiting  sur- 
rounding facts  is  not  establishing  a  principal  fact."  But  surely  this 
last  is  a  very  common  way  of  establishing  a  principal  fact.  If  the 
term  res  gesta  be  limited  to  the  "  principal  fact,"  and  it  be  then  said 
that  declarations  are  not  receivable  unless  so  intimately  connected  with 
that,  as  to  be  part  of  It,"  things  would  be  simpler. 

=*  [As  to  Bedingfield's  Case,  see  also  State  v.  Murphy,  16  R.  I.  528  ; 
Com.  V.  Van  Horn,  188  Pa.  143 ;  State  v.  Robinson,  52  La.  .4nn.  541 ; 
State  V.  Arnold,  47  So.  Car.  9  ;  Brown  v.  Louisville  Ry.  Co.,  21  Ky. 
Law  Reporter,  995  ;  State  v.  Hudspeth,  150  Mo.  12  ;  Croomes  v.  State, 
40  Tex.  Cr.  Reps.  672.] 


280  LEGAL  ESSAYS 

into  the  house  with  some  spirits,  and,  "  in  a  minute  or  two," 
the  attention  of  a  washer-woman  in  the  back  yard,  or 
"  drying-ground,"  was  attracted  by  the  scream  of  a  woman 
at  the  house,  and  then  she  saw  Mrs.  Kudd  coming  from  it. 
Another  woman  was  at  the  moment  on  her  way  from  the 
drying-ground  to  the  house,  and  met  Mrs.  Rudd,  "  bleeding 
very  much,  and  seeming  very  much  frightened,"  who  said 
to  her,  "  Oh,  aunt,  see  what  Bedingfield  has  done  to  me." 
Here  we  have  only  "  a  minute  or  two  "  to  allow  for  all  that 
happened  in  the  house,  whatever  it  was,  after  Bedingfield 
entered  with  the  spirits,  until  the  scream;  and  then  came 
the  instant  appearance  of  the  woman,  met  immediately  by 
another  woman  on  her  way  from  the  yard  to  the  house,  and 
at  once  the  declaration.  In  Com.  v.  Ilackett,  the  witness 
who  had  heard  the  first  cry  was  able  to  say  that  he  reached 
the  other  "  in  twenty  seconds."  It  would  seem  that  the 
interval  between  the  scream  and  the  statement  here  could 
not  have  been  materially,  if  at  all,  more.  Chief  Justice 
Cockburn  would  not  object  to  receiving  this  declaration  in 
evidence  as  a  part  of  the  res  gesta,  if  the  defendant  had 
appeared  to  be  continuing  to  act;  e.  g.  (as  it  would  seem), 
if  it  had  appeared  that,  having  stumbled  and  fallen  and 
then  recovered  himself,  he  had  appeared  at  the  door  of  the 
house  in  pursuit  just  after  the  words  were  uttered.  His 
inquiry  is,  whether  the  defendant  was  acting,  really  or  con- 
structively, when  the  declaration  was  made.  He  says ;  "  If 
a  party  assailed  should  succeed  in  escaping  from  the  im- 
mediate attack  and  presence  of  his  assailant,  and  should, 
while  apprehending  immediate  danger,  make  a  declaration 
in  his  flight,  with  a  view  to  obtaining  assistance,  such  dec- 
laration would  be  admissible;  but  not  so  if  the  declaration 
were  made  after  all  pursuit  or  danger  had  ceased."  How, 
then,  if  the  party  assailed  be  so  severely  wounded  that  he 
cannot  escape,  and  the  assailant  has  run  away?  Shall  the 
admissibility  of  the  sudden  cries,  ejaculations,  and  hurried 
statements  of  the  injured  person  depend  upon  whether  all 
further  danger  has  in  fact  ceased  ?    Suppose,  as  Mr.  Taylor 


BEDINGFIELD'S  CASE  281 

said,  that  the  injured  person  is  escaping,  and  that  his 
assailant,  who  was  pursuing,  suddenly,  without  his  victim's 
knowledge,  falls  and  breaks  his  leg,  is  the  admissibility  of 
the  instant  statements  dependent  upon  this  mere  question 
of  fact,  unknown  to  the  declarant  ?  So  it  seems.  "  The 
declarations  of  the  injured  party,"  the  Chief  Justice  says, 
"  must  be  in  the  presence  of  the  accused,  or,  if  in  his 
absence,  must  be  made  while  his  action  is  continuing,  either 
actually  or  constructively.  ...  A  man  .  .  .  waylaid  by 
another,  who  makes  a  murderous  assault  on  him,  .  .  .  suc- 
ceeding in  making  his  escape,  flies,  .  .  .  applies  .  .  .  for 
protection,  stating  what  has  happened.  ...  I  should  have 
no  hesitation  in  holding  the  statement  so  made  to  be  prop- 
erly part  of  the  res  gestae.  .  .  .  But  if  .  .  .  the  wrong- 
doer were  to  desert  and  take  to  flight,  statements  subse- 
quently made  by  the  injured  party  to  third  persons  would, 
I  think,  stand  on  an  entirely  different  footing.  Next  con- 
sider the  case  on  the  supposition  that  the  act  is  completed 
and  done;  .  .  .  the  party  who  has  received  a  wound  is  left 
lying  on  the  spot;  the  assailant  has  fled  without  intention 
of  returning,  or  of  doing  anything  further  towards  carry- 
ing out  his  purpose.  ...  In  each  of  these  cases  .  .  . 
statements  .  .  .  made  when  the  transaction  is  over  form 
properly  no  part  of  the  res  gestae.  .  .  ."  It  would  seem, 
then,  that  the  Chief  Justice  would  have  decided  Com.  v. 
Hackett  the  other  way;  and  that  Mr.  Taylor,  at  p.  9  of 
his  pamphlet,  is  too  generous  when,  after  putting  the  case 
of  the  broken  leg,  he  says :  "  In  such  a  case,  I  will  not 
insult  your  Lordship  by  assuming  that  your  decision  re- 
specting the  admissibility  of  the  statement  could  have  varied 
in  the  slightest  degree."  The  Chief  Justice,  as  it  seems, 
would  make  the  question  turn  precisely  upon  that,  —  upon 
the  mere  fact.^ 

'  But  one  cannot  feel  sure  just  what  the  Chief  Justice  means  by 
"  constructively  acting,"  and  being  "  constructively  a  party  to  what 
takes  place."  Compare  what  is  in  the  text  with  what  is  said  at  p.  14 
of  the  pamphlet :  "  A  thief  takes  my  purse  from  my  pocket  .  .  .  I  see 
the  thief  running  away.     I  call  out  to  a  policeman,  telling  him  that 


282  LEGAL   ESSAYS 

A  peculiarity  of  the  Chief  Justice's  view  lies  in  requir- 
ing absolutely  strict  and  literal  contemporaneousness,  —  ad- 
mitting, however,  anything  that  is  contemporaneous  with 
certain  acts  of  the  accused  person,  although  the  main  act 
in  question  be  over.  The  rigor  of  this  doctrine  is  clearly 
inconsistent  with  what  is  held  in  civil  cases  as  the  meaning 
of  "  contemporaneous  " ;  and,  as  has  been  said  before,  there 
is  not,  so  far  as  the  writer  is  aware,  any  acknowledged  dif- 
ference on  this  subject  between  cases  civil  and  criminal.^ 
In  point  of  principle,  it  seems  very  objectionable  at  this 
time  of  day  to  draw,  for  the  first  time,  a  line  in  regard  to 
the  admissibility  of  evidence  that  involves  us  in  such  re- 
finements as  those  which  have  been  indicated  above.  There 
is  always  advantage  in  having  a  precise  rule;  but  there 
may  be  a  precision  which  sacrifices  too  much  of  substance.^ 
When,  therefore,  we  have  in  practice  a  rule  which  saves 
from  the  rigid  operation  of  the  hearsay  rule  a  quantity  of 
valuable  evidence,  —  such  as  in  modern  times  no  one,  if  he 
were  making  a  code,  would  reject,  —  it  is  a  step  backward 
to  adopt,  for  the  first  time,  a  narrow  definition  that  shuts 
out  a  considerable  portion  of  this  evidence.  Judges  are, 
in  general,  less  afraid  of  juries  now  than  they  used  to  be; 
one  is  reminded,  as  he  deals  with  this  nicety  of  the  Chief 

/  have  been  robbed  by  the  man  who  is  disappearino  in  the  distance.  .  .  . 
The  '  inseparable  attributes  '  and  '  kindred  facts '  connected  with  the 
taking  of  the  purse  may  be  that  the  thief  .  .  .  knocks  me  down,  or 
trips  me  up  .  .  .  while  he  is  helping  himself  to  my  purse.  Thus  far 
I  have  no  difficulty  in  seeing  that  the  circumstances  attending  the 
original  transaction  form  part  of  the  res  pestae." 

'  Thus,  Bishop  in  his  Criminal  Procedure,  vol.  i.  s.  1080  (3d 
ed.),  under  the  heading  "The  Best  Evidence,  and  the  Doctrine  of  the 
Res  Gestae,"  begins  :  "  The  rules  on  this  subject  are  the  same  in  crim- 
inal cases  and  In  civil."  In  regard  to  English  criminal  cases  it  should 
be  remarked  that  the  judges  often  exercise  a  paternal  discretion  In 
the  conduct  of  them  ;  this  lessens  the  value  of  their  precedents,  as 
regards  rulings  that  are  ■favorable  to  an  accused  person.  These  are 
often  precedents,  not  so  much  of  law  as  of  mercy  or  of  good  sense 
in  administration.  Observe,  e.  g.,  the  strong  practical  reasons  which 
the  Chief  Justice  gives  for  this  very  ruling  at  p.  2.3  of  his  pamphlet. 

*  It  is  believed  that  the  confusion  on  this  subject  has  arisen  not 
so  much  from  lack  of  precision  in  the  word  "  contemporaneous "  as 
from  omitting  to  fix  any  precise  notion  to  the  phrases  res  gesta  and 
res  gestae.  Consider,  for  example,  what  is  meant  when  it  is  said  of 
the  entry  of  a  deceased  person,  made  in  the  course  of  business,  that 
It  must  be  contemporaneous.     Doe  v.  Turford,  3  B.  &  Ad.  890. 


BEDINGFIELD'S  CASE  283 

Justice,  of  his  own  sensible  remark  in  Eeg.  v.  Birmingham, 
1  B.  &  S.  763  (1861)  :  "People  were  formerly  frightened 
out  of  their  wits  about  admitting  evidence,  lest  juries  should 
go  wrong.  In  modem  times  we  admit  the  evidence  and  dis- 
cuss its  weight."  ^ 

In  considering  the  use  of  the  term  "  a  part  of  the  res 
gesta  "  in  such  cases  as  those  now  referred  to,  it  is  of  course 
evident  that  it  is  applied  in  no  exact  sense;  the  phrase, 
like  many  others,  has  a  certain  play  allowed  to  it;  pre- 
cisely what  is  meant,  is,  that  the  declaration  is  so  close  to 
the  act,  that  it  is  as  if  it  were  a  part  of  the  fact.  This  way 
of  using  language  is  no  strange  thing;  the  administration 
of  law  is  a  practical  matter,  carried  on  by  a  class  of  prac- 
tical men,  of  whom,  in  England,  it  is  well  said,  by  a  writer 
who  is  now  one  of  them :  "  It  is  the  characteristic  of  English 
judges  to  care  little  for  technical  niceties  of  language  in 
comparison  with  substantial  clearness  of  statement  in  ref- 
erence to  the  actual  matter  in  hand." "  Chief  Justice 
Cockburn's  own  definition  and  explanation  of  this  term 
(pamphlet,  p.  19)  contains  a  recognition  of  the  necessity 
of  allowing  some  play  to  the  expression;  after  observing 
that  "  whatever,  whether  act  or  words,  forms  part  and 
parcel  of  the  fact  which  is  the  subject  of  the  judicial  in- 
quiry, presents  no  difficulty,"  he  adds  this :  "  Words  uttered 
during  the  continuance  of  the  main  action,  whether  by  the 
active  or  the  passive  party,  though  they  cannot  amount  to 
acts  for  which  the  accused  can  be  held  responsible,  yet  may 
so  qualify  or  explain  the  act  or  acts  they  accompany,  that 
they  become  essential  to  the  due  appreciation  of  them. 
There  is  every  reason,  therefore,  for  considering  words  so 
spoken  during  the  doing  of  the  act  charged  as  the  offence, 
as  part  and  parcel  of  the  act  itself."     And  yet,  of  course, 

1  No  doubt  there  is  great  danger  of  forgetting  the  grave  diflPercxice 
which  the  common  law  makes  between  declarations  and  other  evi- 
dentiary facts.  It  appears  to  the  writer  that  Dr.  V^'harton  falls  rito 
this  error  in  his  valuable  treatises  on  Evidence  ;  see,  e.  y.,  1  Wharton, 
Evidence,  s.  259. 

^  Stephen's  Digest  of  Criminal  Law,  note  xvii. 


284  LEGAL  ESSAYS 

they  are  not  "  part  and  parcel "  of  it  in  any  exact  sense. 
In  the  undertaking  to  put  an  unlearned  tribunal  —  and 
indeed,  any  tribunal  —  in  possession  of  facts  from  which 
they  are  to  draw  inferences  to  the  matters  in  issue,  those 
facts  must  be  given  to  them,  not  in  the  form  that  is  logic- 
ally the  leanest  possible  one,  but  in  a  form  that  is  fairly 
and  reasonably  full  in  point  of  detail  and  circumstance. 
The  principle  which  we  are  now  concerned  with  is  that 
which  says  that  words  uttered  under  such  circumstances 
are,  in  general,  like  any  other  matters  of  detail.^  What  is 
and  what  is  not  a  fair  and  reasonable  fulness  of  detail  in 
such  cases  is  always  for  the  court  to  determine ;  and  doubt- 
less that  raises  difficult  questions,  upon  which  there  will 
always  be  diiferences  of  opinion.  But  it  may  fairly  be 
hoped  that  these  differences  will  diminish  if  the  funda- 
mental theory  and  conception  of  the  thing  can  be  perceived 
and  agreed  upon. 

It  is  always  to  be  remembered  that  to  fix  a  thing  as 
being  really  a  part  of  the  surroundings  of  a  given  fact,  or 
as  really  belonging  to  a  given  situation,  is  not  therefore 
to  make  it  admissible.  It  is  easy  to  see  that,  in  telling  any 
story,  it  would  be  possible  to  run  down  the  particulars  of 
it  into'  great  detail :  one  might  state  the  condition  of  the 
thermometer  at  the  time  and  spot,  the  color  of  each  man's 
hair,  the  apparent  state  of  his  health,  the  color  and  cut  of 
his  clothes,  and  so  on,  —  and  each  of  these  things  would 

^  This  sort  of  thing,  and  also  the  classes  of  declarations  objected 
to  by  Chief  Justice  Cockburn,  seem  to  be  included  in  the  third  article 
of  Stephen's  Digest  of  Evidence,  which  reads  thus :  "  Facts  which, 
though  not  In  Issue,  are  so  connected  with  a  fact  In  Issue  as  to  form 
a  part  of  the  same  transaction  or  subject-matter,  are  deemed  to  be 
relevant  to  the  fact  with  which  they  are  so  connected."  One  of  his 
illustrations  Is  that  of  an  indictment  of  A.  for  the  murder  of  B.  by 
shooting.  "  The  fact  that  a  witness,  who  was  in  the  room  with  B.  just 
before  he  was  shot,  saw  a  man  with  a  gun  in  his  hand  pass  the  window, 
and  exclaimed,  '  That 's  the  batcher  ! '  (a  name  by  which  A.  was  known) 
is  deemed  to  be  relevant."  Another  is  the  case  of  R.  t;.  Foster,  6  C. 
&  P.  325,  a  charge  of  manslaughter  committed  by  A.,  in  carelessly 
driving  over  B.  "  A  statement  made  by  B.,  as  to  the  cause  of  the 
accident,  as  soon  as  he  was  picked  up  ('at  the  instant,'  was  Baron 
Gurney's  expression),  is  deemed  to  be  relevant,  though  it  may  not 
be  a  dying  declaration." 


BEDINGFIELD'S  CASE  285 

be  a  part  of  the  res  gesta.  But  in  very  many  cases  they 
might  properly  be  rejected.  In  our  double  tribunal  of 
court  and  jury,  anything  which  a  party,  in  good  faith, 
considers  to  bear  upon  his  case,  he  may  draw  to  the  atten- 
tion of  the  court;  but  the  court  will  apply  the  principles 
of  good  sense  as  well  as  law  in  determining  whether  the 
time  of  the  tribunal  shall  be  taken  up  with  it;  and  so, 
although  much  may  in  fact  be  kept  from  the  jury  which  a 
party  is  persuaded  is  admissible,  it  is  to  be  noticed  that  he 
always  has  his  chance  at  the  other  branch  of  the  tribunal, 
—  his  "  day  in  court "  before  the  public  dispenser  of  sound 
judgment,  as  to  whether  anything  which  he  pleases  to  offer 
shall  be  received.  Whatsoever  is  irrelevant  may,  of  course, 
be  rejected ;  whatsoever,  also,  though  in  strictness  relevant, 
is,  as  the  case  stands,  clearly  inadequate,  and  so  immaterial ; 
whatsoever,  though  relevant  and  not  quite  immaterial,  yet, 
having  regard  to  the  bearing  of  it  in  other  parts  of  the 
case  or  the  use  that  is  likely  to  be  made  of  it,  is  really 
colorable.^  No  doubt  the  exercise  of  these  functions  is  a 
delicate  matter ;  but  the  right  to  exercise  them  points  to  a 
difference  between  parts  of  the  res  gesta  which  are  legally 
admissible,  and  other  parts.  We  are  to  consider,  then, 
that  just  as  there  is  a  relevancy  which  is  logical  but  not 
legal,  —  so  that  when  we  talk  in  a  legal  discussion  of  rele- 
vancy, we  mean  legal  relevancy,  —  so  in  a  legal  discussion 
about  evidence  the  expression,  "  a  part  of  the  res  gesta," 
means  such  a  part  of  it  as  is  admissible  in  evidence,  having 
regard  to  all  the  rules. 

(b)  In  the  Chief  Justice's  illustrations  he  limits  the 
declarations  to  those  of  the  parties  to  the  act:  and  this  is 
not  uncommon.  It  is  no  doubt  true  that  in  most  cases  it 
is  the  declarations  of  these  parties  only  that  will  be  material 
in  the  case.  But  that  is  not  always  so.  In  presenting  the 
facts  of  any  transaction  it  may  well  happen  that  the  con- 
temporary declarations  of  a  bystander  may  have  a  material 

1  Coleman  v.  The  People,  55  N.  Y.  81,  88 ;  Agassiz  v.  London  Tram- 
way Co.,  21  Weekly  Rep.  199. 


28G  LEGAL  ESSAYS 

value  as  evidence,  and  if  they  have,  it  is  not  apparent  why 
they  should  be  rejected;  and  so  in  the  case  cited  in 
Stephen's  first  illustration  under  the  third  article  in  his 
Digest  of  Evidence  (ante,  p.  284,  note),  the  declaration  of 
a  third  person  was  received.^  In  such  a  case  as  that  of 
Com.  V.  Eoberts,  108  Mass.  296,  it  is  submitted  that  the  re- 
mark of  the  bystander,  so  far  as  this  element  is  concerned, 
was  properly  received  below,  and  that  the  slight  handling 
of  this  question  by  the  upper  court  is  unsatisfactory. 

(c)  It  is  said  that  the  declaration  must  always  accom- 
pany some  material  act  or  fact.  This  seems  to  be  true,  but 
is  not  always  clearly  understood,  or  understood  in  the  same 
sense.  We  have  seen  that  the  very  notion  of  a  declaration 
as  a  part  of  the  res  gesta,  in  the  law  of  evidence,  is  that 
it  is  part  of  an  act  or  fact.  Evans  long  ago  ^  pointed  out 
that  it  was  nothing,  merely  to  support  a  declaration  by  an 
accompanying  fact,  the  res  gesta  must  be  a  res  gcsta  that 
has  something  to  do  with  the  case;  and  then  the  div  lara- 
tion  must  have  something  to  do  with  the  res  gesta;  '•'  it 
is  not  enough  that  the  declaration  should  be  contemporane- 
ous with  the  res  gesta  if  the  import  of  the  declaration  re- 
late to  something  else. 

By  using  the  plural  phrase,  res  gestae,  and  then  conceiv- 
ing of  it  as  indicating  a  group  of  facts  surrounding  and 
illustrating  some  other  principal  fact,  and  of  the  declara- 
tion as  being  one  of  this  subsidiary  group,  the  cases  some- 
times get,  in  a  peculiar  way,  at  the  proposition  that  the 
declaration  must  accompany  a  fact.   Thus  in  Lund  v.  Tyngs- 

'  Aliter  in  Bradshaw  v.  Com.,  10  Bush,  576  Compare  Castner  v. 
Sliker,  4  Vroom,  95,  where  the  words  of  a  bystander  were  received  ; 
affirmed  ib.  507,  on  grounds  sufficient  in  that  case,  but  not,  as  it  would 
seem,  quite  satisfactory  In  a  general  application.  ["Bosanquet,  J. 
(to  counsel),  'How  do  you  translate  res  f/estaef  Gestae  by  whom? 
.  .  .  Parke,  B.,  '  the  acts,  by  whomsoever  done,  are  res  gestae,  if 
relevant  to  the  matter  In  Issue."  Wright  v.  Doe  d.  Tatham,  7  A.  &  E. 
313,  at  p.  355   (1837).] 

2  2  Evans  Poth.  287  (1806). 

3  ["It  has  been  well  said  that  res  gesta  must  be  a  res  gcsta  that 
has  something  to  do  with  the  case,  and  then  the  declaration  must  have 
something  to  do  with  the  res  qesta."  Earl,  J.,  In  Waldele  t'.  New  York 
Central  Railroad,  95  N.  Y.  274,  286.] 


BEDINGFIELD'S  CASE  287 

borough,  9  Cush.  36,  in  holding  inadmissible  the  declara- 
tions of  a  physician  as  to  the  nature  of  the  injuries  and 
the  condition  of  a  patient,  made  while  in  the  act  of  examin- 
ing him,  and  at  a  time  when  the  patient's  condition  was 
material,  the  court  go  upon  the  ground  that  there  was  no 
admissible  act  or  fact  shown  to  which  the  declarations  bore 
the  relation  of  being  a  part  of  its  "  res  gestae."  The  court 
(Fletcher,  J.),  in  a  singular  passage  (p.  42),  say:  "The 
res  gestae  are  different  in  different  cases;  and  it  is  not, 
perhaps,  possible  to  frame  any  definition  which  would  em- 
brace all  the  various  cases  which  may  arise  in  practice.  It 
is  for  the  judicial  mind  to  determine  upon  such  principles 
and  tests  as  are  established  by  the  law  of  evidence,  what 
facts  and  circumstances,  in  particular  cases,  come  within 
the  import  of  the  terms.  In  general  the  res  gestae  mean 
those  declarations,  and  those  surrounding  facts  and  circum- 
stances which  grow  out  of  the  main  transaction,  and  have 
those  relations  to  it  which  have  been  above  described."  ^ 
Again,  on  p.  44,  it  is  said :  "  Every  case  has  its  own  peculiar 
distinctive  res  gestae;  and  to  determine,  in  any  particular 
case,  whether  or  not  there  is  properly  any  main  fact,  and 
what  declarations,  facts,  and  circumstances  belong  to  it,  as 
forming  the  res  gestae,  is  often  very  difficult,  requiring  very 
careful  consideration  and  wise  discrimination."  It  was 
accordingly  held  that,  since  the  physician's  examination  by 
itself  was  not  a  material  fact,  the  declarations  which  accom- 
panied it  were  not  admissible.  "  There  was,  therefore,  in 
legal  contemplation,  no  main  fact  with  which  the  declara- 
tions could  be  connected." 

Now,  if  the  declarations  here  had  not  been  statements 
of  opinion,  it  is  conceived  that  in  principle  they  might  well 
enough  have  come  in ;  ^  the  manifestation  of  the  physical 
condition  of  the  patient  was  a  res  gesta,  of  which  the  dec- 
larations might  be  deemed  a  part,  —  as  being  contempo- 

'  The  description  here  referred  to  was  that  they  "  illustrate  its 
character,  are  contemporary  with  it,  and  derive  some  degree  of  credit 
from  it." 

*  [Professor  Thayer  has  annotated  this  passage  "  qu.  as  to  this."] 


288  LEGAL  ESSAYS 

raneous  and  made  about  that  which  was  present  to  the 
senses  of  the  speaker,  and  present  also  to  the  senses  of  the 
witness,  —  and  this  notwithstanding  the  declarant  was  not 
the  suffering  party.  But  in  this  case  the  statement  was 
matter  of  opinion,  and  it  is  held  that  statements  of  opinion 
cannot  come  in  in  that  way.^ 

(d)  It  is  said 2  that  "declarations  .  .  .  are  no  proof  of 
the  facts  themselves;  and,  therefore,  if  it  be  necessary  to 
show  the  existence  of  such  facts,  proof  aliunde  must  be  laid 
before  the  jury."  This,  perhaps,  sometimes  misleads.  Of 
course,  when  it  is  said  that  you  must  first  have  your  fact, 
your  res  gesta,  it  is  implied  that  you  cannot  depend  on  the 
declaration  for  the  proof  of  that;  but  it  must  not  be  sup- 
posed that  the  declaration  is  not  legitimately  used  to  prove 
what  the  declaration  imports,  and  to  supply  new  and  other- 
wise unproved,  or  insufficiently  proved,  elements  in  the  res 
gesta.  The  remark  of  the  bystander,  in  the  case  cited  under 
Stephen's  Article  3,  who  said,  "  There 's  the  butcher,"  was, 
it  is  conceived,  legitimately  to  be  used  as  tending  to  prove 
that  the  butcher  fired  the  shot.  The  exclamation  of  the 
deceased  in  Commonwealth  v.  Hackett,  "  Dan  Hackett 
stabbed  me,"  was  properly  to  be  used  to  prove  that  the 
accused  did  the  deed.  And  so  in  Bedingfield's  case,  the 
exclamation,  "  See  what  Bedingfield  has  done  to  me," 
might  properly  have  been  admitted  to  prove  the  truth  of 
its  import.  So  in  Insurance  Co.  v.  Mosley,  the  fact  of  a 
sudden  development  of  physical  disturbance  having  been 
proved,  if  the  husband  had  immediately  met  his  son  or 
returned  to  his  wife,  the  instant  declaration  that  he  had 
fallen  down  stairs  might  properly  have  been  used  to  prove 


>  Wright  V.  Doe  d.  Tatham,  ."5  Clark  &  Pinnelly,  313 ;  Lund  v. 
Tyngsborough,  9  Cush.  36 ;  Gresham  Hotel  Co.  v.  Manning,  Irish  Rep. 
1  Com.  Law,  125.  ["Opinion  evidence  cannot  be  introduced  by  re- 
ported declarations.  Doe  d.  Wright  v.  Tatham,  supra;  Lund  v.  Tyngs- 
borough, supra;  Lane  v.  Bryant,  9  Gray,  245 ;  Bradford  v.  Cunard 
Co.,  147  Mass.  55,  57.  Compare  Trenton,  etc.  Co.  v.  Cooper,  31  Vroom, 
219;  Castner  v.  Sliker,  4  Vroom,  507."  Thayer's  Cas.  Ev.  (2d  ed.) 
654,  n.] 

»  1  Taylor,  Ev.  s.  586. 


BEDINGFIELD'S  CASE  289 

that  fact.     In  these  cases  a  res  gesta  was  first  proved  in- 
dependently of  the  declaration.^ 

(2)  Passing  now  to  declarations  which  attend  an  evi- 
dentiary fact,  Chief  Justice  Cockbum's  definition  relates 
only  to  the  ultimate  facts  in  the  case,  —  "  the  principal  act 
charged."  This  is  often  intimated  in  the  common  way  of 
speaking  of  the  phrase  7-es  gesta.  Is  it  intended  to  say  that  it 
does  not  apply  to  evidentiary  facts  ?  This  way  of  speaking, 
in  many  cases,  no  doubt,  arises  from  the  fact  that  the  dis- 
crimination between  these  facts  and  evidentiary  ones  is  not 
present  to  the  m.ind;  the  more  common  way  of  speaking 
of  evidentiary  facts  is  that  of  calling  them  "  circumstantial 
evidence,"  and  thus  obscuring  their  character ;  they  are  Just 
as  much  facts  to  be  proved  as  the  ultimate  facts  in  the 
case.  Another  circumstance  has  helped  to  this  mode  of 
speaking  of  the  res  gesta,  as  if  it  were  limited  to  the  ulti- 
mate facts,  —  viz.,  an  ambiguity  in  the  meaning  of  the 
term  "  principal  fact " ;  declarations  are  spoken  of  as  being 
"  res  gestae,"  —  "  surrounding  circumstances  "  attending 
the  principal  fact.  Thus  the  word  "  principal "  is  used  to 
indicate  the  relation  of  a  fact  to  its  accompanying  declara- 
tion. Such  is  the  sense  in  which  the  term  "  principal  fact " 
is  used  all  through  the  opinion  in  Lund  v.  Tyngsborough, 
while  the  phrase  "  res  gestae  "  is  used  to  denote  the  con- 
comitant circumstances  of  any  fact,  —  not  discriminating 
evidentiary  facts  from  any  other.  The  head-note  of  that 
case  reads:  "Where  the  act  of  a  party  (t.  e.,  a  person,  any 
person)  may  be  given  in  evidence,  his  declarations  made  at 
the  time,  and  calculated  to  elucidate  and  explain  the  char- 
acter and  quality  of  the  act,  and  so  connected  with  it  as  to 

1  Redfield,  C.  J.,  in  State  v.  Davidson,  30  Vt.  377  (1858),  has  said 
that  "  it  is  well  settled  that  the  declarations  of  a  party  injured  when 
no  one  is  present  are  not  evidence  to  show  the  manner  in  which  the 
injury  occurred,  however  nearly  contemporaneous."  That  statement 
seems  entirely  unsound.  The  context  shows  that  the  Chief  Justice,  in 
saying  "  when  no  one  is  present,"  means  no  one  who  can  be  a  witness  ; 
such  a  case  as  Bedingfield's  would  be  included  in  his  remark,  and  the 
principle  thus  stated  would  shut  out  this  declaration,  although  Beding- 
fleld  had  been  at  the  time  pursuing  the  deceased,  — -  a  contingency  in 
which  Cockburn,  C.  J.,  would  admit  it. 

19 


290  LEGAL  ESSAYS 

constitute  one  transaction,  and  so  as  to  derive  credit  from 
the  act  itself,  form  a  part  of  the  res  gestae  and  are  admis- 
sible in  evidence."  And  so  Stephen's  article  8  (quoted  ante, 
p.  234),  admits  declarations  accompanying  acts,  "  wherever 
acts  may  he  proved."  His  limitation  of  declarations  to  those 
"made  by  or  to  the  person  doing  it"  (the  act),  seems  not 
necessary,  for  the  reasons  already  indicated. 

This  discrimination  is  not  much  discussed,  but  it  seems 
clearly  good.^  Suppose  that  it  were  necessary  for  some 
ulterior  purpose  to  use  the  fact  that  a  bankrupt  had  left 
home  with  the  intention  to  defraud  his  creditors,  —  it  would 
be  novel  to  hear  that  you  could  not  prove  all  the  elements 
of  that  fact  in  the  same  way  as  if  it  were  the  ultimate 
thing  in  the  case.  "  I  never  heard,"  said  Coleridge,  J.,  in 
Thomas  v.  Jenkins,  6  Ad.  &  El.  525,  529,  "  that  a  fact 
was  not  to  be  proved  in  the  same  manner  when  subsidiary, 
as  when  it  is  the  very  matter  in  issue.  If  the  fact  here  was 
relevant,  I  think  it  was  to  be  proved  in  the  ordinary  way." 
In  a  case,  also,  in  Massachusetts,  North  Brookfield  v.  War- 
ren, 16  Gray,  171,  174,  Bigelow,  C.  J.,  speaking  for  the 
court,  said :  "  It  is  not  denied  that  this  evidence  would  have 
been  competent,  if  it  had  been  introduced  to  prove  a  fact 
directly  in  issue,  .  .  .  but  it  was  contended  that  it  was  in- 
admissible to  establish  a  fact  collateral  in  its  nature,  from 
which  the  main  fact  in  issue  was  to  be  deduced  by  infer- 
ence. But  we  know  of  no  such  distinction  in  the  rules  of 
evidence.  .  .  .  The  true  test  is,  to  inquire  whether  the 
evidence  is  admissible  to  prove  the  fact  which  it  is  offered 
to  establish,  and  not  whether  such  fact  is  directly  or  only 
collaterally  in  issue."  ^ 

1  1  Tayl.  Ev.  s.  587 ;  Hunter  v.  The  State,  11  Vroom,  495 ;  R.  v. 
Edwards,  12  Cox,  230.  The  discussion  In  Lund  v.  Tyngsborough  Im- 
ports that  the  distinction  between  an  evidentiary  fact  and  another 
Is  not  conceived  of  as  material.  The  matter  is  touched,  in  passing, 
by  Denio,  J.,  in  People  v.  Williams,  3  Parker's  Crim.  Rep.  84  :  "  To 
render  the  declaration  competent,  the  act  itself  should  be  pertinent  to 
the  Issue.  .  .  .  The  material  fact  was  as  to  the  accused  and  the 
deceased  being  together  that  night.  Even  this  was  not  a  principal  fact, 
but  only  a  circumstance  to  show  that  the  prisoner  had  opportunity." 

-  These  cases  did  not  involve  the  subject  of  the  res  geata,  but  the 
principle  stated  is  of  general  application.  That  which  is  true  of  the 
proof  of  the  fact  must  be  true  of  the  Illustration  and  explanation  of  It. 


BEDINGFIELD'S  CASE  291 

But,  while  this  is  true,  it  is  yet  very  important  to  mark 
a  difference  between  this  second  class  of  declarations  and 
those  which  are  a  part  of  the  ultimate  fact.  In  both  cases 
the  declarations  are  receivable  to  prove  whatever  they  may 
tend  to  prove  about  the  fact,  the  res  gesta,  of  which  they 
are  a  part.^  But  when  they  are  a  part  of  an  evidentiary 
fact,  they  cannot  be  received  as  tending  independently  to 
prove  the  ultimate  fact.  They  attend  and  illustrate  the 
evidentiary  fact;  in  so  far  as  they  go  to  fill  out,  to  ex- 
plain, to  give  full  effect,  to  that,  they  may  legitimately 
operate:  but  they  cannot  be  admitted  to  prove  a  fact  of 
which  they  are  not  a  part;  and  by  the  supposition  they 
are  not  a  part  of  the  ultimate  fact. 

4.  Finallj',  there  is  a  class  of  cases  that  seems  to  call  for 
some  special  consideration,  viz.,  where  the  declaration  re- 
lates to  the  physical  or  mental  condition  of  the  speaker. 
In  examining  the  case"  of  Ins.  Co.  v.  Mosley,  we  saw  that 
one  question  was  as  to  receiving  the  complaints  of  the  in- 
jured person  to  show  his  suffering  and  the  nature  of  his 
injuries,  and  that  they  were  received  as  a  part  of  the  res 
gesta.  "  Where  sickness,"  said  the  court,  "  or  affection  is 
the  subject  of  inquiry,  the  sickness  or  affection  is  the  prin- 
cipal fact.  The  res  gestae  are  the  declarations  tending  to 
show  the  reality  of  its  existence  and  its  extent  and  char- 
acter." 2  Such  declarations  are  very  commonly  treated 
under  this  head.  On  the  other  hand,  we  have  seen  {ante, 
p.  363,  note)  that  Chief  Justice  Cockbum  considers  them  as 
coming  "  under  an  entirely  different  head  and  rule  of  evi- 
dence," —  not  naming  it,  but  referring  to  Taylor's  Evi- 
dence, s.  518  (s.  580,  7th  ed.)  ;  and  yet,  as  we  saw,  Taylor 
follows  Greenleaf  in  bringing  this  under  the  "  principle  of 
the  res  gestae.'^   This  view  of  the  Chief  Justice  is  often  ex- 

1   [See  Mutual  Life  Ins.  Co.  v.  Hlllmon,  145  U.  S.  285,  295.] 
*  One  sees  here  a  neat  illustration  of  the  confusion  which  is  pro- 
duced by  using  the  plural  phrase :    the  true  conception  seems  to  be  that 
the   manifestation  of   sickness   is  the  res  gesta,  and   the  declarations 
are  a  part  of  that  contemporaneous  manifestation. 


292  LEGAL  ESSAYS 

pressed  by  others,^  —  that  this  class  of  declarations  does 
not  come  in  as  a  part  of  the  res  gesla.  Why  ?  Apparently 
their  admission  is  put  upon  the  ground  of  a  special  excep- 
tion to  the  hearsay  rule  arising  out  of  the  supposed  "  neces- 
sity "  of  the  case,  —  an  inexact  expression  for  the  difficulty 
of  proving  facts  of  the  sort  referred  to.  And  it  would  seem 
that  the  fact  that  such  declarations  are  admissible  to  prove 
the  thing  itself,  the  bodily  or  mental  affection,  —  and  the 
opinion  ( 1 )  that  they  may  be  received  as  the  only  evidence 
of  it,  and  (2)  that  declarations  which  are  part  of  the  res 
gesta  are  not  receivable  to  prove  that,  —  are  what  lead  to 
this  doctrine.2  It  is  conceived,  however,  that  the  juster 
view  is  that  which  deals  with  the  greater  part  of  these 
declarations  as  a  part  of  the  res  gesta,  —  notwithstanding 
the  fact  that,  like  other  classes  of  cases,  this  also  has  its 
own  peculiarities. 

It  is  true  that  the  text-books  generally  say,  and  the  cases 
in  their  dicta  repeat  the  expression, -that  such  declarations 
of  a  mental  affection  "  are  often  the  only  proof  of  its 
existence." 

(1)  But  this  is  often  said  of  declarations,  with  the  ad- 
mission of  which  the  law  of  evidence  has  nothing  to  do, 
e.  g.  (to  take  an  illustration  in  Darby  v.  Rice,  2  N.  &  McC. 
596),  a  declaration  by  a  third  person,  in  which  he  went 
through  the  multiplication  table,  would,  no  doubt,  be  ad- 
missible to  show  that  he  knew  it ;  ^  while  his  mere  declara- 
tion, "  I  know  the  multiplication  table,"  would  not  be 
admissible  to  show  that  he  knew  it.  So  in  an  action  for 
the  seduction  of  the  plaintiff's  wife,  on  the  question  of 
damages,  a  declaration  of  hers  which  consisted  in  swearing 
at  her  husband  would  be  admissible,  and  so  under  some  cir- 
cumstances a  declaration  that  he  beat  her  a  month  ago,  — 

'  E.  g.,  by  Redfleld,  C.  J.,  In  State  v.  Davidson.  .'iO  Verm.  377. 

=  Perhaps,  after  all,  the  principal  reason  Is  that  the  text-books  are 
followed  but  misapprehended  ;  just  as  Cockburn,  C.  .T.,  failed  to  observe 
that  Taylor  (and  Greenleaf),  although  treating  this  class  separately 
for  convenience,  yet  regarded  them  as  illustrations  of  the  "  principle 
of  the  res  gestae." 

3   [See  Swift  v.  Mass.  Mutual  Life  Ins.  Co.,  G.3  N.  Y.  186.] 


BEDINGFIELD'S  CASE  293 

the  last  being  receivable  not  to  show  the  truth  of  the  beating, 
but  to  discover  the  existing  mental  condition,  as  regards  her 
husband,  of  one  who  could  make  such  a  statement.  And 
where  the  inquiry  is  as  to  sanity  and  the  like,  any  act  or 
statement  may  be  admissible  as  a  manifestation  of  the  mental 
state.    Such  cases  really  stand  outside  the  hearsay  rule.^ 

(2)  This  is  also  said  of  such  questions  as  the  first  one 
in  Ins.  Co.  v.  Mosley.  But  generally  it  is  said  when  it  is 
not  quite  true ;  probably  there  are  few  cases,  if  any,  where, 
as  the  question  presents  itself  at  the  trial,  there  is  not, 
besides  the  declaration,  evidence  of  appearances  or  acts 
which  point  the  same  way.  It  is  material  to  notice  that 
the  text-books  and  later  cases  state  their  doctrine  upon  this 
subject  as  being  drawn  from  Aveson  v.  Kinnaird,  6  East, 
188  (1806),  to  which,  no  dovibt,  all  our  modern  cases  upon 
this  subject  run  back,^  But  that  case  does  not  justify  the 
view  that  a  mere  declaration  of  mental  or  bodily  condition, 
with  no  accompanying  fact  which  might  be  the  sign  or  the 
result  of  that  condition,  is  admissible  as  evidence  of  it."^ 
There  were  in  that  case  a  variety  of  other  facts  manifesting 
illness.  The  case  was  this:  the  plaintiff,  having  insured 
with  the  defendants  the  life  of  his  wife,  who  died  soon  after, 
sued  now  upon  the  policy;  the  question  was,  whether  the 
wife's  health  at  the  date  of  the  policy  was  as  warranted 
therein,  and  as  described  in  a  surgeon's  certificate  there 
referred  to.  The  defendants  sought  to  show  that  she  had  a 
settled  habit  of  immoderate  drinking,  which  rendered  her 
life  not  an  insurable  one  at  the  date  of  the  policy.  The 
date  of  the  policy  was  November  22,  1802  ;  that  of  the  sur- 

'  See  the  discussion  in  the  cases  of  Shailer  v.  Bnmstead,  99  Mass. 
112;  Wright  v.  Doe  d.  Tatham,  5  CI.  &  Fin.  313;  and  Waterman  v. 
Whitney.  11  N.  Y.  157. 

"  As  to  Aveson  v.  Kinnaird,  see  Swift  v.  Mass.  Mut.  Life  Ins.  Co., 
63  N.  Y.  186. 

3  [But  why  should  it  not  be?  Whenever  the  mental  or  bodily  con- 
dition is  material  to  the  case,  it  would  seem  by  the  reasoning  of  this 
article  to  be  of  itself  an  ultimate  or  evidential  fact  which  may  properly 
be  proved  by  its  contemporaneous  manifestations  in  the  shape  of  dec- 
larations. And  such  was  Professor  Thayer's  later  view.  See  note  on 
page  298,  infra.] 


294  LEGAL   ESSAYS 

geon's  certificate  was  Xovcmber  9.  She  had  gone  to  Man- 
chester to  be  examined  by  the  surgeon,  and  he  now  testified 
for  the  plaintiff  that  he  believed  her,  on  that  day,  in  good 
health ;  that  she  was  a  stranger  to  him,  and  that  he  there- 
fore "  observed  her  very  minutely  .  .  .  and  formed  his 
opinion  from  an  examination  of  her  general  appearance, 
her  pulse,  complexion,  and  other  circumstances,  and  prin- 
cipally from  the  satisfactory  answers  she  gave  to  his  in- 
quiries." The  surgeon,  in  other  words,  testified  to  his 
opinion  and  gave  the  grounds  of  it  (Stephen's  Digest  of 
Evidence,  art.  54).  The  defendants  on  their  side  intro- 
duced as  a  witness  a  woman  who  was  an  intimate  friend 
of  the  wife,  and  who  was  permitted,  under  objection,  to 
state  that  having  made  a  casual  call  on  the  wife  in  No- 
vember, "  soon  after  her  return  from  ^Manchester,"  and 
having  found  her,  at  11  o'clock  in  the  morning,  in  bed,  she 
then  learned  from  her,  —  the  wife,  speaking  "  in  a  faint 
way,"  — "  that  she  had  been  to  Manchester  the  Tuesday 
before,  and  that  her  husband  had  been  insuring  her  life 
.  .  .  that  she  was  poorly  when  she  went  to  Manchester  and 
not  fit  to  go;  that  it  would  be  ten  days  before  the  policy 
could  be  returned,  and  she  was  afraid  she  could  not  live 
till  it  was  made,  and  then  her  husband  could  not  get  the 
money."  After  a  verdict  for  the  defendants  the  case  went 
up  on  a  rule  for  a  new  trial,  on  the  ground  that  this  con- 
versation "  was  improperly  admitted,  being  no  more  than 
evidence  of  hearsay  of  the  wife  against  the  husband."  It 
will  be  observed  that  the  question  here  related  to  the  wife's 
health  as  of  November  22,  the  date  of  the  policy;  that  the 
nature  of  the  defence,  viz.,  a  settled  habit  of  hard  drinking, 
made  the  condition  of  her  health  at  other  periods,  not 
remote  from  that  date,  material ;  that  the  plaintiff  had 
introduced  the  testimony  of  the  surgeon  as  to  her  health 
on  November  9,  the  date  of  the  certificate,  thirteen  days 
before  the  date  of  the  policy,  and  that  if  that  evidence  were 
admissible,  whether  to  show  the  truth  of  a  representation 
upon  which  the  policy  was  made,  or  to  prove  her  health  as 


BEDINGFIELD'S  CASE  295 

of  November  23,  —  it  was  allowable  to  meet  it;  and  that 
while  the  exact  date  of  the  woman's  conversation  with 
Mrs.  Aveson  is  not  given,  it  appears,  by  her  reference  to 
"  the  Tuesday  before,"  that  it  was  before  November  16, 
and  so  at  a  date  which  was  between  the  date  of  the  sur- 
geon's certificate  and  that  of  the  policy,  and  not  remote 
from  either,  —  her  condition  at  both  of  these  dates  being 
material.  It  is  also  to  be  observed  that  there  are  two  sorts 
of  declaration  here,  one  stating  her  present  condition,  and 
the  other  stating  what  it  was  some  days  before.  At  the 
argument  the  defendants  said  that  the  declarations  were 
made  "  recently  after  the  insurance  effected  (which  seems 
not  accurate  —  it  was  before  the  date  of  the  policy),  when 
she  was  lying  in  bed  at  an  unseasonable  hour  of  the  day, 
apparently  very  ill  and  her  voice  faint.  The  answers  given 
by  Mrs.  Aveson  to  the  witness's  inquiries  are  explanatory 
of  the  situation  she  was  found  in,  and  the  appearance  of 
illness  exhibited  by  her,  and  are  naturally  connected  with 
the  transaction."  And  it  was  insisted  that,  since  the  sur- 
geon's evidence  was  founded  largely  on  what  she  said  to 
him,  therefore  what  she  said  to  others  must  be  good  to 
meet  his  evidence.  The  plaintiffs,  conceding  that  what  she 
gave  as  "  her  reason  for  being  found  in  bed  .  .  .  might  per- 
haps be  admissible  as  a  declaration  accompanying  an  act," 
insisted  that  the  rest  at  all  events  was  inadmissible,  as  being 
mere  hearsay,  and  "  no  part  of  the  res  gestae."  They  also 
pressed  the  clear  distinction  between  the  surgeon's  evidence 
as  to  the  wife's  statements,  and  that  of  the  woman,  —  "  T\e 
opinion  of  a  medical  man  upon  the  state  of  a  person's  health, 
which  is  the  object  of  inquiry,  is  evidence  per  se,  from  the 
necessity  of  the  case;  therefore  the  grounds  of  his  opinion 
are  collaterally  let  in  as  evidence  also,  in  which  light  only  the 
answers  of  the  wife  to  his  inquiries  become  examinable." 

Opinions  were  given  by  Lord  Ellenborough,  and  by  the 
Justices  Grose  and  Lawrence;  all  relied  on  the  fact  that 
the  wife's  declarations  were  explanatory  of  the  other  facts 
going  to  show  illness.     Lord  Ellenborough  said :    ''  The 


296  LEGAL  ESSAYS 

substance  of  the  whole  conversation  was  that  the  wife  had 
been  ill,  at  least  from  the  9th  of  November,  when  she  was 
examined  by  the  surgeon,  and  certified  to  be  in  good  health, 
down  to  the  day  when  the  conversation  took  place,  and  those 
appearances  were  exhibited  to  the  loitness;  and  in  that  view 
I  think  the  evidence  was  unexceptionable."  He  had  pre- 
viously said:  "The  question  being  what  was  the  state  of 
her  own  health  at  a  certain  period,  a  witness  has  been  re- 
ceived to  relate  that  which  has  always  been  received  from 
patients  to  explain  {sic)  her  own  account  of  the  cause 
of  her  being  found  in  bed  at  an  unseasonable  hour,  with 
the  appearance  of  being  ill.  She  was  questioned  as  to  her 
bodily  infirmity;  she  said  it  was  of  some  duration,  several 
days.  .  .  .  Then,  if  inquiries  of  patients  by  medical  men, 
with  the  answers  to  them,  are  evidence  of  the  state  of  health 
of  the  patients  at  the  time,  this  must  be  evidence."  The 
case  is  also  put  by  the  Chief  Justice  upon  another  ground 
(since  generally  condemned),  —  that  of  allowing  to  the 
defendant  "a  sort  of  cross-examination,  as  it  were,"  of 
the  wife,  by  putting  in  her  contradictory  declarations.  The 
other  judges  both  speak  of  the  statements  of  the  wife  as 
explaining  the  cause  of  her  being  found  in  bed.  Mr.  Justice 
Lawrence  said :  "  In  order  to  know  whether  she  were  in 
a  good  state  of  health  on  the  day  of  the  insurance,  it  was 
material  to  ascertain  what  the  state  of  health  was  both 
before  and  after  that  day.  If  what  she  said  to  Susannah 
Lees  were  not  evidence  against  her  husband,  then  what 
she  said  to  the  surgeon  could  not  be  evidence  for  him." 
He  had  previously  said :  "  As  to  the  general  ground  of 
objection  to  the  evidence  as  hearsay,  it  is  every  day's  ex- 
perience in  actions  of  assault  that  what  a  man  has  said 
of  himself  to  his  surgeon  is  evidence  to  show  what  he 
suffered  by  reason  of  the  assault.^     The  wife  was  found 

>  This  is  sometimes  quoted  (e.  g..  in  Insurance  Co.  v.  Mosley,  8  Wall., 
at  p.  406)  as  if  it  meant  that  the  declaration  to  the  surgeon  was 
received  to  prove  the  facts  of  the  assault.  But  the  connection  seems 
to  indicate  what  is  meant,  viz.,  a  statement  of  the  patient's  bodily 
condition. 


BEDINGFIELD'S  CASE  297 

in  bed  at  an  unusual  time:  slie  complained  of  illness,  and 
naturally  answered  her  friend's  inquiries  by  describing  how 
long  her  health  had  been  bad,  and  she  carried  it  to  a 
period  antecedent  to  her  examination  by  the  surgeon  at 
Manchester." 

It  is  not  pertinent  to  the  present  inquiry  to  go  into  all 
the  questions  discussed  in  these  opinions.  In  so  far  as  the 
case  assumes  that,  because  the  surgeon  is  allowed  to  give 
his  patient's  narrative  of  a  past  cause  of  his  disorder  as 
one  of  the  grounds  of  his  opinion,  therefore  statements  of 
the  same  character  may  be  given  for  any  other  purpose, 
whether  to  prove  the  state  of  health  or  as  "  a  sort  of  cross- 
examination,"  —  the  doctrine  of  this  case  is  not  to  be 
approved.  But  in  other  respects  it  seems  sound.  The  point 
specially  to  be  observed  now  is  this :  the  case  does  not  lay 
down  any  doctrine  that  a  mere  bald  declaration  of  a  con- 
dition of  body  or  mind,  unaccompanied  by  other  facts,  is 
admissible  to  prove  that  condition.  The  single,  often- 
quoted  remark  of  Mr.  Justice  Lawrence,  taken  out  of  its 
connection,  that  "  it  is  every  day's  experience  in  actions 
of  assault  that  what  a  man  has  said  of  himself  to  his  sur- 
geon is  evidence  to  show  what  he  suffered  by  reason  of  the 
assault,"  no  more  indicates  this  than  Lord  Ellenborough's 
remark  does,  at  the  end  of  his  opinion,  —  "  the  declaration 
was  upon  the  subject  of  her  own  health  at  the  time,  which 
is  a  fact  of  which  her  own  declaration  is  evidence  " ;  these 
are  short  statements,  which  are  to  be  understood  by  observ- 
ing what  else  is  said,  and  we  have  seen  that  both  judges 
rely  on  the  other  facts. 

Now  this  case  is  all  the  authority  upon  which  the  leading 
text-books  proceeded  in  originally  laying  down  their  loosely 
expressed  doctrine.^  If,  however,  this  case  is  followed, 
there  should  be,  in  such  cases,  some  manifested  condition 
to  be  explained,  and  then  the  declarations  are  received  to 

'  Greenleaf  gave  two  American  cases.  The  only  important  one  Is 
Grey  v.  Young,  Harper,  38,  which  has  a  dictum  resting  on  the  English 


298  LEGAL  ESSAYS 

explain  it/  just  as  a  bankrupt's  declaration  was  receivable 
to  state  the  intention  of  a  proved  act.  If  the  cases  have 
gone  further,  as  the  dicta  certainly  have,  they  might  well 
return  to  the  law  of  the  authority  upon  which  they  rest.^ 

Before  leaving  this  class  of  cases,  two  or  three  sources 
of  confusion  connected  with  them  may  be  briefly  referred 
to. 

(a)  The  opinion  has  been  held  that  it  was  a  legitimate 
thing  to  explain  a  present  fact  by  stating  a  past  cause  of 
it,  or  by  a  narrative  illustrating  it.  In  Insurance  Co.  v. 
Mosley,  this  seems  to  have  been  in  fact  permitted,  but  it 
is  to  be  noticed  that  the  court  allowed  the  statement  of  the 
past  cause  on  the  view  that  it  was  "  made  almost  contem- 
poraneously with  its  occurrence."  And  the  law  is  nowadays 
correctly  laid  down  that  a  narrative  under  such  circum- 
stances is  not  legitimate.  Chapin  v.  Marlborough,  9  Gray, 
244. 

(&)  It  has  been  supposed  that  there  was  some  difference 
as  regards  admissibility,  between  the  reporting  of  declara- 
tions by  medical  men  and  by  others.  There  is,  as  regards 
the  point  that  an  expert  when  asked  for  an  opinion  may 
state  the  grounds  of  his  opinion,  and  so  a  statement  of  what 
is  past  given  to  him  by  the  patient;   of  course  a  narrative 

*  [This  passage  and  some  others  (see  note  on  page  203,  supra) 
Indicate  that  when  the  article  was  written  Professor  Thayer  perhaps 
favored  a  narrower  view  in  some  respects  than  was  talien  by  the  court 
in  Mutual  Life  Insurance  Co.  v.  Hlllmon,  145  U.  S.  285,  and  Com.  v. 
Trefethen,  157  Mass.  180.  But  his  views  on  these  points  were  modified 
before  those  cases  were  decided  so  as  to  correspond  entirely  with  the 
conclusions  reached  by  the  court.  It  so  happened  that  he  was  dealing 
with  the  matter  in  his  classroom  on  the  very  day  when  the  Hlllmon 
case  was  argued  at  Washington,  and  the  following  passage  is  taken 
verbatim  from  notes  of  his  lecture  on  that  day :  "  Whenever  a  state 
of  mind  Is  material  you  can  show  declarations  accompanying  the  state 
of  mind  "] 

^  Edlngton  v.  Mutual  Life  Ins.  Co.,  67  N.  Y.  183,  192.  In  New 
York,  in  1871,  the  opinion  of  the  majority  of  the  Court  of  Appeals, 
proceeding,  as  it  would  seem,  too  literally  upon  the  view  that  declara- 
tions as  to  a  person's  own  physical  sensations,  and  the  like,  are  only 
admitted  from  necessity,  declared  the  doctrine  no  longer  law  in  the  case 
of  the  declarations  of  living  parties  to  the  suit,  since  they  are  now 
admitted  to  testify.  The  opinion  is  in  several  respects  ill-considered. 
Reed  v.  N.  Y.  Cent.  R.  R.  Co.,  45  N.  Y.  574.  But  compare  Kennard 
V.  Burton,  25  Maine,  39. 


BEDINGFIELD'S  CASE  299 

repeated  for  such  a  purpose  is  not  to  be  used  for  any  other 
purpose  than  that  of  testing  the  expert.  Apart  from  that, 
there  is  no  difference.^ 

(c)  There  is  sometimes  an  impression  that  a  declara- 
tion relating  to  the  consequences  of  an  injury  must  neces- 
sarily be  given  near  the  time  of  the  injury.  But  that  is 
obviously  not  so;    if  the  physical  condition  of  the  person 

^  Aveson  v.  Kinnaird,  6  East,  188 ;  Gardner  Peerage  Case,  170-179. 
As  to  the  admissibility  of  a  physician's  statement  of  what  Jiis  patient 
told  him,  when  he  is  asked  in  court  for  an  opinion  and  for  mie  grounds 
of  it,  Bigelow,  C.  J.,  in  Barber  v.  Merrlam,  11  Allen,  322,  said  :  "  The 
opinion  of  a  surgeon  or  physician  is  necessarily  formed  In  part  on 
the  statements  of  his  patient,  describing  his  condition  and  symptoms, 
and  the  causes  ichich  have  led  to  the  injury  or  disease  under  which 
he  appears  to  be  suffering.  This  opinion  is  clearly  competent  as  coming 
from  an  expert.  But  it  is  obvious  that  it  would  be  unreasonable,  if 
not  absurd,  to  receive  the  opinion  in  evidence,  and  at  the  same  time 
to  shut  out  the  reasons  and  grounds  on  which  it  was  founded.  .  .  . 
The  party  .  .  .  who  relies  on  his  opinion  should  be  allowed  the  priv- 
ilege of  showing  that  his  testimony  as  an  expert  is  the  result  of  due 
inquiry  and  investigation  into  the  condition  and  symptoms  of  the 
patient,  J)oth  past  and  present." 

In  Massachusetts  an  ill-founded  dictum  Is  afloat  in  the  cases,  dis- 
criminating between  statements  in  the  nature  of  ejaculations  and  other 
more  formal  ones ;  the  latter  may  only  be  reported  by  physicians.  This 
was  started  in  Bacon  v.  Charlton,  7  Cush.  581,  and  repeated  in  Barber 
V.  Merriam.  It  is  a  pity  that  this  doctrine  should  not  be  formally  put 
in  controversy  ;  the  point  has  never  yet  been  decided  by  the  upper 
court.  That  It  has  but  a  slight  foundation  is  apparent  from  comparing 
the  opinion  in  Bacon  v.  Charlton  with  the  authorities  upon  which  it 
goes.  The  court  Intended  to  state  no  new  doctrine,  and,  as  it  would 
seem,  misconceived  the  existing  rule.  The  line  of  Massachusetts  cases 
Is,  Bacon  v.  Charlton,  Chapin  v.  Marlborough,  Emerson  v.  Lowell  Gas 
Co.,  6  Allen,  146,  Barber  v.  Merrlam,  Ashland  v.  Marlborough,  99  Mass. 
47,  and  Fay  v.  Harlan,  128  Mass.  244.  ["  For  comments  on  this  case 
[Barber  v.  Merriam]  and  the  results  of  its  imperfect  discrimination, 
see  1  Greenl.  Ev.  (16th  ed.)  ss.  162a,  1626.  Several  things  should  be 
kept  distinct  which  are  often  more  or  less  confused  :  1.  The  narrative 
of  past  facts  oflfered  to  prove  the  truth  of  them.  2.  The  same,  olTered 
as  the  grounds  of  expert  opinion.  3.  Statements  of  presently  existing 
sensation,  or  the  seat  of  it.  4.  Mere  animal  utterances  and  movements 
indicating  these  last  things.  The  distinction  between  (3)  as  made  to 
a  physician  and  to  an  ordinary  witness  may  well  be  thought  ill-founded 
and  unsatisfactory.  It  is,  of  course,  to  be  remembered  that  a  court 
may  in  its  discretion  exclude  (2)  as  being  likely  to  be  misused  by  the 
jury,  and  may  limit  the  witness  to  the  mere  fact  that  he  founded  his 
opinion  on  what  he  heard,  without  stating  what  it  was. 

"  The  modern  cases  on  this  subject  run  back  to  Aveson  v.  Kinnaird, 
6  East,  188.  See  1  Tayl.  Ev.  (9th  ed.)  s.  580;  Mutual  Life  Ins.  Co. 
V.  Hillmon,  145  U.  S.  285. 

"  For  the  very  simple  method  that  prevailed  formerly,  one  which.  If 
subject  always  to  the  control  and  discretion  of  the  courts,  has  much 
to  commend  It,  see  Blandy's  Case,  18  How.  St.  Tr.  1135  seq.  (1752)." 
Thayer's  Cas.  Ev.  (2d  ed.)  592,  n.  See  also  Roosa  r.  Boston  Loan  Co., 
132  Mass.  439,  and  Commonwealth  v.  Sinclair,  195  Mass.  (Apr.,  1907).] 


300  LEGAL  ESSAYS 

a  week  after  an  injury  be  material,  declarations  made  at 
that  time  about  the  present  facts  are  good.^ 

The  class  of  cases  in  which  there  is  an  effort  to  prove 
the  intention  of  a  person  by  his  own  declarations  might  seem 
properly  to  be  put  with  those  last  considered,  since  intention 
is  a  condition  of  mind.^  A  reason  why  they  are  ordinarily 
dealt  with  otherwise  may  probably  be  that  the  question  of 
intention  has  been  most  commonly  raised  in  relation  to  some 
specific  act,  as  in  the  bankruptcy  cases,  and  then  it  is 
plainly  assimilated  to  ordinary  questions  of  the  res  gesta; 
when  it  takes  the  form  of  a  permanent  intention,  a  disposi- 
tion or  habit  of  mind,  it  is  not  apparent  why  it  should  be 
distinguished  from  other  mental  affections,  if,  indeed,  there 
be  any  essentially  peculiar  rule  applicable  in  regard  to  those. 
In  those  bankruptcy  cases  where  the  question  referred  to 
the  intention  of  a  protracted  absence  from  home,  we  saw 
that  evidence  of  declarations  of  intention  at  any  time  during 
the  absence  was  receivable,  the  res  gesta  being  considered 
to  be  the  continuous  act  of  absence. 

Sometimes  the  question  of  whether  evidence  of  a  person's 
intention  is  material  is  confounded  with  the  question  of 
the  mode  of  proving  it,  and  objections  are  made  to  a  given 
effort  to  prove  intention,  as  if  they  related  to  the  mode  of 
proving  it,  when  they  really  relate  to  the  undertaking  to 
prove  it  at  all.  An  illustration  of  this  may  be  seen  in  The 
People  V.  Williams,  3  Parker's  Criminal  Reports,  84  (1855). 
In  an  indictment  for  the  murder  of  the  defendant's  wife 
by  poisoning,  it  was  material  to  show  that  the  two  were 
together  on  a  certain  night.  They  did  not  live  together; 
a  woman,  with  whom  the  wife  lived,  testified  that  on  the 
evening  in  question  the  wife  left  her,  and  that  she  returned 

'  Kennard  v.  Burton,  25  Maine,  .39  ;    Ins.  Co.  v.  Mosley,  8  Wall.  397. 

'  "  Wherever,"  said  Melllsh,  L.  .T.,  In  Sugden  v.  St.  Leonards,  1  P.  D., 
at  p.  251,  "  It  Is  material  to  prove  the  state  of  a  person's  mind,  or  what 
was  passing  In  it,  and  what  were  the  Intentions,  then  you  may  prove 
what  he  said,  because  that  is  the  only  means  by  which  you  can  find  out 
what  his  intentions  are."  Of  course  it  is  not  literally  true  that  this  is 
"  the  only  means." 


BEDINGFIELD'S  CASE  301 

at  five  o'clock  the  next  morning ;  that  "  she  left  my  house 
with  clothing  for  her  husband,  as  she  said,"  —  he  being  the 
watchman  on  a  boat  on  the  North  Eiver.  Exceptions  were 
taken,  which  were  treated  by  the  Court  of  Appeals  as  ex- 
ceptions to  the  admission  of  this  declaration.  "  The  ques- 
tion to  be  determined,"  said  Denio,  J.,  "  is  whether  the 
declarations  of  the  deceased  as  to  where  she  was  going  on 
Saturday  evening  were  admissible."  It  was  held  that  they 
were  not,  but  an  examination  of  the  case  shows  that  this 
was  on  the  ground,  not  of  the  way  of  proving  intention, 
but  of  the  immateriality  of  any  evidence  of  it.  Leaving  the 
house,  said  the  court,  was  not  material  unless  it  was  shown 
that  the  deceased  met  the  defendant  during  her  absence; 
if  they  met,  it  is  immaterial  whether  she  intended  to  meet 
him ;  if  she  failed  to  meet  him,  he  could  not  be  prejudiced 
by  her  intention  to  meet  him.  In  other  words,  all  evidence 
of  intention  was  inadmissible.  But  the  matter  is  not  fairly 
dealt  with  by  saying  that  leaving  the  house  was  immaterial 
unless  it  were  shown  that  the  parties  met ;  to  show  that  the 
woman  left  may  help  to  prove  that  they  met ;  to  prove  that 
she  was  not  at  home  that  night,  may  surely  be  a  step,  in 
conjunction  with  other  circumstances,  in  proving  that  she 
was  with  the  defendant;  to  shoM^  that  she  left  with  the 
intention  (assuming  the  intention  legitimately  made  out) 
of  going  to  her  husband,  has  some  tendency  to  show,  in  con- 
junction with  other  evidence,  which  really  existed  in  the 
case,  that  she  did  go  to  her  husband.^  Assuming  that 
evidence  of  intention  was  receivable,  this  mode  of  proving 
it  was  legitimate,  and  has  the  support  of  many  cases.^ 

The  writer  must  here  bring  these  informal  and  very  im- 
perfect suggestions  to  an  end.    The  general  purpose  of  them 

1  [And  so  Mutual  Life  Ins.  Co.  v.  Hillmon,  145  U.  S.  285.] 
-  E.  g.,  the  line  of  bankruptcy  cases,  as  to  proving  the  intention 
of  going  away.  Eighmy  v.  The  People,  79  N.  Y.  546,  557,  Hunter  v. 
The  People,  11  Vroom,  495,  534.  But  see  R.  v.  Wainwright,  13  Cox, 
171,  where,  on  a  similar  question.  Chief  Justice  Cockburn  said  :  "  It 
was  no  part  of  the  act  of  leaving,  but  only  an  incidental  remark,  and 
only  a  statement  of  Intention  which  she  may  or  may  not  have  carried 
out.     She  would  have  gone  away  under  any  circumstances." 


302  LEGAL  ESSAYS 

has  been  to  endeavor  to  discover  a  precise  conception  for 
the  term  res  gesta  (since  it  can  hardly  be  hoped  that  the 
use  of  it  will  be  abandoned),  to  indicate  the  general  aim 
of  the  cases  which  admit  declarations  as  a  part  of  it,  and 
to  make  certain  comments  upon  text-books  and  the  cases. 

The  leading  notion  in  the  doctrine,  so  far  as,  upon  analy- 
sis, it  has  anything  to  do  with  the  law  of  evidence,  seems 
to  have  been  that  of  withdrawing  from  the  operation  of  the 
hearsay  rule  declarations  of  fact  which  were  very  near  in 
time  to  that  which  they  tended  to  prove,  fill  out,  or  illustrate, 
—  being  at  the  same  time  not  narrative,  but  importing  what 
was  then  present  or  but  just  gone  by,  and  so  was  open,  either 
immediately  or  in  the  indications  of  it,  to  the  observation 
of  the  witness  who  testifies  to  the  declaration,  and  who  can 
be  cross-examined  as  to  these  indications;  this  nearness 
of  time  is  made  specific  by  the  terms  "  contemporaneous  " 
and  "  a  part  of  the  res  gesta,''  and  it  is  enough  that  the 
declaration  be  substantially  contemporaneous;  it  need  not 
be  literally  so.  It  was  either  the  thing  itself  which  was 
in  issue  that  was  conceived  of  as  the  res  gesta,  or,  some- 
times, some  other  thing  evidentiary  of  that;  in  either 
case  the  fact  or  thing  which,  relatively  to  the  declara- 
tion, is  the  principal  fact,  —  is  the  res  gesta.  The  notion 
of  "  res  gestae  "  as  being  the  concomitant  facts  of  some- 
thing else,  came  in  with  Starkie's  text-book,  and  has  bred 
confusion. 

The  writer  hopes  that  he  has  succeeded  in  indicating  the 
true  relation  to  this  branch  of  the  law  of  evidence,  of  the 
rape  cases,  the  bankruptcy  cases,  the  agency  eases,  and  those 
where  the  effort  is  to  prove  a  declaration  as  being  itself 
a  fact  in  issue;  and  as  to  the  great  and  confused  mass  of 
the  other  cases,  that  he  may  succeed  in  drawing  to  them 
an  increased  attention  on  the  part  of  those  who  have  it 
•in  their  power  gradually  to  bring  consistency  and  order 
into  the  decisions,  or  to  give  shape  to  the  law  at  once  by 
legislation.  It  is  much  to  be  wished  that  wise  legislation 
should  come  in  to  revise  the  whole  law  of  hearsay,  with  a 


BEDINGFIELD'S  CASE  303 

view  to  simplify  it  and  to  admit  many  things  that  cannot 
now,  upon  any  sound  principle,  be  received.^ 

'  ["In  comparing  the  cases  on  hearsay  in  different  States,  it  should 
be  remembered  that  they  may  be  affected  by  peculiarities  in  the  local 
•  codes  '  or  statutes.  These,  sometimes,  materially  broaden  the  doctrine 
of  the  common  law,  and  a  discussion,  in  such  jurisdictions,  which  does 
not  notice  this  fact,  easily  operates  to  confuse  the  subject  with  which 
this  book  is  chiefly  concerned,  that  of  evidence  at  the  common  law. 
Without  referring  to  the  many  '  codes '  in  this  country  more  or  less 
affecting  the  subject  of  evidence,  such  as  those  of  Georgia  ['Declara- 
tions accompanying  an  act  or  so  nearly  connected  therewith  in  time 
as  to  be  free  from  all  suspicion  of  device  or  after-thought  are  admis- 
sible in  evidence  as  part  of  the  res  gestae.'  Code,  s.  3773],  California, 
Iowa,  Ohio,  and  New  York,  a  recent  short  and  comprehensive  statute 
of  Massachusetts  may  be  quoted  which  deeply  affects  the  doctrine  of 
hearsay,  Stat.  1898,  c.  535  :  '  No  declaration  of  a  deceased  person  shall 
be  excluded  as  evidence  on  the  ground  of  its  being  hearsay  if  it  appears 
to  the  satisfaction  of  the  judge  to  have  been  made  In  good  faith  before 
the  beginning  of  the  suit  and  upon  the  personal  knowledge  of  the 
declarant.'  For  the  construction  of  this  statute,  see  Brooks  v.  Holden, 
175  Mass.  137  [Stocker  v.  Foster,  178  Mass.  591,  602,  and  Hayes  v. 
Pitts-Kimball  Co.,  183  Mass.  262]. 

•'  For  a  similar  doctrine  in  the  Scotch  law  see  Kirkpatrick,  Dig. 
Scottish  Law  of  Ev.,  c.  iv.,  and  compare  Mansfield,  C.  .T.,  in  Berkeley 
Peerage  Case,  4  Camp.  414-415  ;    s.  c.  Thayer's  Cas.  Ev.,  2d  ed.,  5. 

"In  Rowland  v.  Phil.,  etc.  R.  Co.,  63  Conn.  415  (1893),  it  appears 
that  Conn.  Gen.  St.  s.  1094  provides  that  '  in  actions  by  or  against  the 
representatives  of  deceased  persons,  the  entries,  memoranda,  and  dec- 
larations of  the  deceased  relevant  to  the  matter  in  Issue,  may  be  re- 
ceived as  evidence.'  For  a  similar  statute  in  Massachusetts  [Rev.  Laws, 
c.  175.  s.  67]  see  Brooks  v.  Holden,  uM  supra."  Thayer's  Cas.  Ev.,  2d 
ed.,  672.  n. 

Professor  Thayer's  connection  with  the  Massachusetts  statute  quoted 
above  (now  Rev.  Laws.  c.  175,  s.  66)  is  not  generally  known.  That 
act  had  Its  origin  in  the  following  letter  written  by  him  In  response 
to  the  annual  request  of  the  Boston  Bar  Association  through  its  Com- 
mittee on  the  Amendment  of  the  Law  for  formulated  suggestions  of 
needed  changes  in  the  law  : 

"  Cambridge,  Dec.  22,  1896. 
"  To  the  Committee  of  the  Suffolk  Bar  Association 
on  the  Amendment  of  the  Law. 

"  Gentlemen,  —  I  beg  to  submit  to  you  the  following  '  formulated 
suggestion  '  for  an  amendment  of  the  law  of  evidence,  viz., 

"  No  declaration  of  a  deceased  person,  made  in  writing  ante  litem 
motani,  shall  be  excluded,  as  evidence,  on  the  ground  of  hearsay,  if  It 
appear  to  the  satisfaction  of  the  judge  to  have  been  made  upon  the 
personal  knowledge  of  the  declarant. 

"  In  support  of  this  suggestion  I  may  submit  the  remark  of  Lord 
Justice  Mellish  In  Sugden  v.  St.  Leonpr.lR,  1  P.  D.  154,  250  (1876)  :  'If 
I  was  asked  what  I  think  it  would  be  desirable  should  be  evidence,  I 
have  not  the  least  hesitation  in  saying  that  I  think  it  would  be  a  highly 
desirable  improvement  in  the  law  If  the  rule  was  that  all  statements 
made  by  persons  who  are  dead  respecting  matters  of  which  they  had  a 
personal  knowledge,  and  made  ante  litem  motam,  should  be  admissible.' 

"  Such  is  the  law  of  Scotland,  —  their  common  law. 

"  It  will  be  observed  that  my  suggestion  falls  much  Inside  the  scope 
of  Lord  Justice  Mellish's  suggestion,  for  I  limit  the  proposed  change  to 
statements  in  writing. 


304  LEGAL  ESSAYS 

•'  Experience  would  help  us  to  see  whether  the  fuller  change  would 
be  desirable. 

"  Truly  yours, 

"J.   B.  THAYER." 

In  the  following  year  the  Committee  decided  to  urge  the  passage  of 
the  statute  suggested  in  this  letter.  It  then  conferred  with  the  Attorney- 
General  (Hon.  Hosea  M.  Knowlton),  who  approved  of  such  an  act,  and 
recommended  it  to  the  legislature  in  his  annual  report  (Report  of  the 
Attorney-General  for  the  year  ending  January  19,  1898,  xviii,  xix). 

The  Attorney-General,  however,  broadened  Professor  Thayer's  sugges- 
tion so  as  to  include  oral  as  well  as  written  declarations.  This  exten- 
sion was  not  favored  by  the  Bar  Association,  and  before  the  Judiciary 
Committee  it  opposed  so  much  of  the  Attorney-General's  recommenda- 
tion as  referred  to  oral  declarations,  but  the  act  was  reported  and  passed 
in  the  broader  form. 

It  is  believed  by  many  that  Professor  Thayer's  plan  of  limiting  this 
statutory  inroad  into  the  hearsay  rule  to  written  declarations,  for  the 
present  at  least,  would  have  been  wiser.  It  should  be  further  observed 
that  in  no  event  can  the  purposes  of  the  statute  be  properly  carried  out 
unless  the  trial  judge  fully  recognizes  his  duty  to  reject  any  declaration, 
unless  he  is  satisfied  that  it  was  in  fact  made  in  good  faith,  and  upon 
the  personal  knowledge  of  the  declarant.  Whether  it  was  so  made  is  a 
question  of  fact  to  be  decided  by  him  in  the  first  instance  like  any  other 
preliminary  question  of  fact  determining  the  admissibility  of  evidence 
(Com.  V.  Reagan,  175  Mass.  335)  ;  and  therefore  the  party  offering  the 
evidence  must  prove  his  facts  to  the  satisfaction  of  both  tribunals 
before  the  testimony  can  have  any  effect.  This  safeguard  against  the 
introduction  of  manufactured  testimony  was  regarded  by  Professor 
Thayer  as  an  essential  feature  of  the  act  even  In  the  more  conservative 
form  in  which  he  favored  it;  and  its  importance  is  obviously  greater  in 
a  statute  which  includes  oral  as  well  as  written  declarations.  It  is  to 
be  feared,  however,  that  judges  sometimes  admit  declarations  upon  the 
mere  proof  of  facts  tending  to  show  that  the  conditions  of  the  statute 
were  satisfied,  thus  overlooking  the  requirement  of  an  independent  judi- 
cial determination  in  the  first  instance  of  the  question  whether  the 
declaration  was  made  in  good  faith  and  upon  personal  knowledge  (which 
of  course  includes  the  question  whether  it  was  ever  made  at  all).] 


"LAW  AND   LOGIC" 

[This  article  appeared  in  the  Harvard  Law  Review  for  June, 
1900  (14  Harv.  Law  Rev.  139),  in  answer  to  an  article  in  the  pre- 
vious number  (14  Harv.  Law  Rev.  39),  in  which  a  learned  writer 
criticised  certain  views  expressed  by  Professor  Tliayer  in  the 
Preliminary  Treatise  on  Evidence  —  more  especially  the  propo- 
sition that  "  Admissibility  is  determined,  first,  by  relevancy,  — 
an  affair  of  logic  and  experience,  and  not  at  all  of  law;  second, 
but  only  indirectly,  by  the  law  of  evidence,  which  declares  whether 
any  given  matter  which  is  logically  probative  is  excluded."  (Prel. 
Treat.  Evid.  269).] 

The  ingenious  writer  of  a  leading  article  under  this  title, 
in  the  last  number  of  the  Eeview  (p.  39),  seems  to  find 
in  a  book  which  he  does  me  the  honor  to  criticise,  these 
three  things : 

1.  An  opinion,  to  use  his  own  language,  that  "  the  law 
of  evidence  begins  only  when  the  courts,  either  uncon- 
sciously or  purposely,  violate  the  rules  of  logic  concerning 
the  relevancy  of  evidence  " ;  —  as  against  which  opinion  he 
himself  declares  that  "  logic  furnishes  no  test  of  relevancy," 
adding  that,  "  unless  we  permit  the  law  to  decide  that  ques- 
tion for  us,  it  is  not  going  to  be  decided  at  all." 

2.  That  a  decision  in  Grand  Trunk  Eailway  v.  Eichard- 
son,  91  U.  S.  469,  is  "  banished  from  the  domain  of  law," 
"  because  the  court  has  excluded  evidence  which  the  author 
considers  logically  irrelevant." 

3.  A  statement  that  a  certain  proposition,  decided  by  the 
whole  Supreme  Court,  in  Eichmond  E.  Co.  v.  Tobacco  Co., 
169  U.  S.  311,  is  accounted  for  by  the  fact  that  the  judge 
who  wrote  the  opinion  had  his  legal  training  in  Louisiana. 

The  writer  then  adds  certain  views  as  to  the  nature  of 
the  common  law  and  the  operation  of  judicial  precedents 
in  our  system. 

20 


306  LEGAL  ESSAYS 

Into  these  last  matters  1  will  not  enter.  But  as  to  the 
others,  I  should  like  to  say  a  word  or  two.  1  will  take  them 
in  reverse  order. 

1.  As  to  the  Tobacco  Company  case,  the  remark  criticised 
was  that  "  perhaps  tJiis  exposition  may  be  accounted  for," 
etc.  The  allusion  was  not  to  the  point  adjudged,  —  re- 
lating to  a  very  troublesome  question  in  constitutional  law, 
which  was  rightly  disposed  of,  as  I  should  think,  —  but 
only  to  the  way  this  result  was  reached.  In  different  parts 
of  this  opinion,  a  statute  of  Virginia,  which  was  attacked 
as  an  unconstitutional  regulation  of  interstate  commerce, 
is  explained  as  merely  establishing  "  a  rule  of  evidence," 
and  again  as  requiring  the  contract  "  to  be  embodied  in 
a  particular  form."  These  I  think  to  be  two  different 
things.  Neither  of  these  theories  is  essential  to  the  discus- 
sion. Both  of  them  may  well  have  been  peculiar  to  the 
writer  of  the  opinion ;  any  of  the  judges  may  have  rejected 
either  or  both  of  them.  In  assuming  that  all  the  reasoning 
of  the  judge  who  gives  the  opinion  is  that  of  all  the  judges 
who  are  silent  in  their  assent  to  the  judgment  which  it  ex- 
plains, the  learned  critic  overlooks,  for  the  moment,  facts 
that  are  familiar  to  the  legal  profession. 

2.  As  regards  the  Richardson  case,  it  was  cited  in  the 
book  referred  to  —  by  a  reference  to  a  particular  page  in 
the  Report  —  as  illustrating  the  point  that  what  are  called 
questions  in  the  law  of  evidence  are  very  often,  in  reality, 
questions  belonging  to  some  other  part  of  the  law;  a  man, 
it  was  said,  who  mistakes  the  proposition  of  substantive 
law  on  which  his  case  turns,  and  offers  evidence  accordingly, 
is  often  told  that  his  evidence  is  not  admissible,  when  the 
real  thing  meant  is  that  he  is  wrong  in  his  notion  of  the 
true  proposition  of  the  issue;  for  example,  as  to  the  true 
legal  standard  of  diligence.  This  was  one  of  several  illus- 
trations. The  plaintiff  in  error,  in  Richardson's  case,  in 
repelling  the  charge  of  negligence,  had  offered  evidence  of 
"  the  usual  practice  of  railroad  companies  in  that  section 
of  the  country."     The  court,  in  sustaining  the  rejection 


"LAW  AND  LOGIC"  307 

of  this  evidence,  after  stating  that  it  is  "  impossible  for  us 
to  see  any  reason"  for  admitting  it,  pointed  out,  on  the 
page  cited,  what  the  issue  was,  and  added :  "  Hence  the 
standard  by  which  its  conduct  was  to  be  measured  was  not 
the  conduct  of  other  railroad  companies  in  the  vicinity; 
certainly  not  their  usual  conduct.  Besides,"  etc.  This 
I  understand  to  be  a  statement  that  the  plaintiff  in  error 
appears  to  be  wrong  in  his  conception  of  the  true  standard 
of  diligence,  and  that  the  evidence  was  inadmissible  upon 
the  real  issue.  The  citation  of  this  passage  seems  to  be 
a  fair  one,  as  illustrating  the  point  to  which  it  is  applied. 
With  the  soundness  of  the  decision,  in  rejecting  the  evi- 
dence, I  was  not,  and  am  not  now,  concerned. 

When,  therefore,  the  critic  asks,  "  On  what  ground  is  this 
case  banished  from  the  law?"  the  question  is  wide  of  the 
mark.  It  is  not  "  banished  from  the  law."  It  is  used  as 
furnishing,  in  a  particular  argument  of  the  judge,  an  illus- 
tration for  a  remark  in  the  text,  —  a  remark  which  has 
to  do  with  the  exclusion  of  certain  matters  from  the  law 
of  evidence,  but  not  at  all  with  excluding  them  from  "  the 
law." 

3.  This  brings  me  to  the  main  point,  viz.,  what  the  critic 
says  as  to  the  theory  of  the  law  of  evidence  which  is  put 
forward  in  the  book  referred  to.  That  theory  is  that  our  law 
of  evidence  is  a  rational  system,  as  contrasted  with  certain 
older  modes  of  proof;  that  in  admitting  evidence  in  our 
law,  it  is  always  assumed  to  be  logically  probative,  i.  e., 
probative  in  its  own  nature,  —  according  to  the  rules  that 
govern  the  process  of  reasoning;  that  the  considerations 
determining  this  logical  quality  are  not  fixed  by  the  law, 
and  that,  so  far  as  legal  determinations  do  proceed  merely 
on  such  considerations,  they  do  not  belong  to  the  domain 
of  law;  that  the  law  of  evidence,  however,  excludes  much 
which  is  logically  good,  that  is  to  say,  good  according  to 
the  tests  of  reason  and  general  experience;  and  that  the 
rules  of  exclusion  make  up  the  main  part  of  the  law  of 
evidence.    The  reasons  for  these  views,  and  the  details  and 


308  LEGAL  ESSAYS 

qualifications  of  them,  are  not  for  this  place:    they  are 
indicated  in  the  book  referred  to. 

Now  this  book  uses  the  word  "  relevancy "  merely  as 
importing  a  logical  relation,  that  is  to  say,  a  relation 
determined  by  the  reasoning  faculty.  The  word  '•'  admissi- 
bility" is  the  term  which  it  applies  to  the  determinations 
of  the  law  of  evidence.  The  critic  seems  not  to  observe 
this ;  and  his  remarks,  for  this  reason,  are  in  some  respects 
inapplicable  to  the  text  that  he  is  dealing  with;  as  when 
he  says  that  "  logic  furnishes  no  test  of  relevancy." 

I  confess  that  1  do  not  know  what  he  means  when  he 
imputes  to  me  the  doctrine  that  "  the  law  of  evidence  begins 
only  when  the  courts,  either  unconsciously  or  purposely, 
violate  the  rules  of  logic  concerning  the  relevancy  of  evi- 
dence." So  far  as  I  perceive  the  meaning  of  this  passage, 
it  seems  to  be  a  senseless  opinion.  The  law  of  evidence 
begins  —  at  least  its  main  function  begins  —  when  it  ex- 
cludes matter  logically  probative,  for  one  or  another  of 
the  many  practical  reasons  that  have  shaped  its  principles 
and  its  rules.  That  irrelevant  matter  is  to  be  excluded  is 
matter  of  course ;  that  is  to  say,  such  matter  is  outside  the 
very  notion  of  "  evidence,"  in  a  rational  system  of  evidence 
like  ours. 

The  critic  appears  to  me  to  be  entirely  right  in  saying 
that  the  judgment  of  a  court  "  has  the  same  value  in  this 
branch  of  the  law  that  it  has  in  any  other  branch."  Doubt- 
less, it  settles  the  particular  case.  It  stands  also,  if  it  does 
stand,  as  a  precedent  to  help  settle  other  like  cases.  But 
bad  reasoning  in  the  law  of  evidence,  like  bad  reasoning 
in  all  other  parts  of  the  law,  is  simply  bad  reasoning;  and 
it  is  never  good  law.  It  may,  to  be  sure,  change  the  law ; 
and  the  result  reached  by  it  may  stand  as  a  new  proposition 
in  the  law  of  evidence,  as  in  any  other  part  of  the  law.  But 
the  bad  reasoning  itself  never  passes  into  a  precedent  having 
legal  authority.  It  is  always  open  to  question.  The  law 
has  no  orders  for  the  reasoning  faculty,  any  more  than 
for  the  perceiving  faculty,  —  for  the  eyes  and  ears. 


"LAW  AND  LOGIC"  309 

Of  course  I  agree  entirely  with  the  critic  that  our  courts 
are  not  engaged  in  reaching  "  mathematical  conclusions/' 
or  in  merely  logical,  abstract,  or  academic  discussions.  For 
the  evidence  of  this  agreement  I  respectfully  refer  him  to 
the  book  in  question,  —  passim.  It  is  with  entire  satis- 
faction that  I  look  on  at  the  destruction  by  the  critic  of  that 
man  of  straw  put  forward  in  his  paper  who  seems  to  have 
entertained  a  different  opinion. 


A   CHAPTER    OF   LEGAL   HISTORY   IN 
MASSACHUSETTS 

[In  1895,  on  the  twenty-fifth  anniversary  of  Dean  Langdell's 
coming  to  the  Harvard  Law  School  as  a  professor,  an  anniversary 
number  of  the  Harvard  Law  Review  was  published,  i  This  bore 
the  following  dedication : 


C.   C.  LANGDELL, 

IN    HONOB   OF 

HIS    GENIUS    AS    A    LAWYER, 

HIS   OEIQINALITY   AS   A   TEACHER   OF   LAW, 

HIS    SAGACITY    AS    A    LAW-SCHOOL    ADMINISTBATOE, 

AND 

IIIS   DEVOTED   AND   SUCCESSFUL   SERVICES    AS   DEAN    AND   PBOFESSOB 
DURING    THE   LAST   TWENTY-FIVE    YEARS, 

SCfje  JFollotoing  lassags 

ABE   INSCRIBED,    WITH    CORDIAL   REGARD,    BY    HIS    PRESENT 

AND   FORMER   COLLEAGUES    IN    THE    FACULTY 

OF   THE    HABVABD    LAW    SCHOOL. 

J.  B.  THAYER.       J.  SMITH.       J.  C.  GRAY.       O.  W.  HOLMES. 

J.  B.  AMES.       E.  WAMBAUGH.       S.  WILLISTON. 

J.  H.  BEALE,  Jr. 

and  each  of  Dean  Langdell's  colleagues  contributed  an  essay  on 
some  legal  topic.  This  "  Chapter  of  Legal  History  "  was  Professor 
Thayer's  contribution.] 

The  matter  of  which  I  shall  write  has  to  do  with  the  com- 
petency of  witnesses.  The  main  features  of  the  common- 
law  doctrine  on  this   subject,   the  general   course  of   its 

*  9  Ilarv.  Law  Rev.  1. 


A  CHAPTER  OF   LEGAL   HISTORY  311 

development,  and  the  fact  of  its  substantial  disappearance 
in  England  and  elsewhere,  are  fairly  well  known.  To  these 
matters,  therefore,  and  the  history  of  them,  I  need  merely 
allude,  —  to  the  ancient  common-law  jury,  at  once  witnesses 
and  triers ;  to  their  necessary  qualifications,  determined  by 
those  of  witnesses  in  the  canon  law ;  ^  to  the  slow  coming 
in  and  the  strange  development  of  the  practice  of  receiving 
witnesses  to  testify  to  these  juries;-  to  the  simple  begin- 
nings of  the  rules  relating  to  the  disqualification  of  these 
new  witnesses,  not  at  all  identical  with  the  disabilities  of 
the  civil  or  canon  law,  and  so  not  the  same  as  those  of  jury- 
men, but  originating  quite  naturally  in  the  requirement 
of  an  oath,  in  natural  incapacity,  in  proved  untrustworthi- 
ness,  and  in  great  and  obvious  danger  of  perjury;  to  the 
working  out  of  these  rules  in  the  course  of  the  seventeenth 
and  eighteenth  centuries  into  technical  details  which  greatly 
perplexed  the  administration  of  justice;  to  the  advent  of 
Bentham,  and  his  keen  and  truculent  attacks  upon  the 
system ;  '^  and  finally  to  the  melting  away  in  England  of 
almost  the  whole  fabric,  under  the  attacks  of  Bentham 
and  his  followers,  during  the  period  between  1833  and  1853 
inclusive.  Of  all  these  things  I  will  merely  remind  the 
reader,  and  will  pass  on. 

In  Massachusetts,  as  regards  the  competency  of  witnesses, 
we  have  had  for  nearly  twenty-five  years  as  clean  a  sheet, 
probably,  as  the  world  affords.  The  law  stands  thus :  ^  "  No 
person  of  sufficient  understanding,  whether  a  party  or  other- 
wise, shall  be  excluded  from  giving  evidence  as  a  witness 

'  Glanville,  II.  c.  12;  Bracton.  p.  185;  Ayliffe,  Parergon  Jur.  Can. 
Angl.  (1st  ed.),  536;  Oughton.  Ord.  Jud.  (1738)  156;  3  Bl.  Com. 
361-364. 

^  Thayer's  Preliminary  Treatise  on  Evidence,  chaps,  ii,  ill,  iv. 

'  The  first  publication  of  his  writings  on  this  subject  was  in  Paris  in 
1823.  Traits  des  Preuves  Judiciales.  Ouvrage  extrait  de  M.  J6r6mie 
Bentham,  Jurisconsulte  Anglais,  par  Et.  Dumont,  etc.  2  vols.  This 
appeared  in  an  English  translation  in  1825  ;  and  in  1827,  John  Stuart 
Mill's  edition  of  Bentham's  entire  treatise  on  "  The  Rationale  of  Judicial 
Evidence "  was  published,  in  five  volumes.  It  takes  a  good  deal  of 
courage  to  read  it. 

♦  Stat.  1870,  c.  393,  s.  1 ;  approved  June  22.  Pub.  St.  Mass.  c.  169, 
s.  18.     [Now  Rev.  Laws,  c.  175,  s.  20.] 


312  LEGAL  ESSAYS 

in  any  proceeding,  civil  or  criminal,  in  court,  or  before  a 
person  having  authority  to  receive  evidence,  except  in  the 
following  cases:  First.  Neither  husband  nor  wife  shall 
be  allowed  to  testify  as  to  private  conversations  with  each 
other.  Second.  Neither  husband  nor  wife  shall  be  com- 
pelled to  be  a  witness  on  any  trial  upon  an  indictment, 
complaint,  or  other  criminal  proceeding,  against  the  other. 
Third.  In  the  trial  of  all  indictments,  complaints,  and 
other  proceedings  against  persons  charged  with  the  commis- 
sion of  crimes  or  offences,  a  person  so  charged  shall,  at  his 
own  request,  but  not  otherwise,  be  deemed  a  competent 
witness ;  and  his  neglect  or  refusal  to  testify  shall  not  create 
any  presumption  against  him."  I  take  this  from  the  Public 
Statutes  of  Massachusetts,  the  compilation  now  in  use.  It 
varies  from  the  original  statute  of  1870  only  by  the  inser- 
tion, in  the  first  line,  of  the  words,  "  whether  a  party  or 
otherwise."  These  provisions  do  not  apply  to  "the  attesting 
witnesses  to  a  will  or  codicil,"  —  a  class  of  persons,  it  will 
be  observed,  who  are  required  in  order  to  constitute  the 
document,  and  not  merely  to  give  evidence  in  court. 

Although  this  statute  uses  the  words,  "  except  in  the  fol- 
lowing cases,"  the  cases  named  are  really  not  exceptions. 
The  first  provision  as  to  husband  and  wife  is  only  a  limita- 
tion of  the  range  of  their  testimony;  the  second  secures  a 
privilege;  and  the  third,  relating  to  accused  persons,  like 
the  second  merely  secures  a  privilege. 

It  may  be  well  to  add  that  the  Massachusetts  statute  also 
provides  that  conviction  of  a  crime  (any  crime)  and  dis- 
belief in  a  God  may  be  given  in  evidence  to  affect  a  wit- 
ness's credit;  that  a  party  calling  his  adversary  as  a 
witness  shall  have  "  the  same  liberty  in  the  examination 
of  such  witness  as  is  allowed  upon  cross-examination " ; 
and  that  "  the  usual  mode  of  administering  oaths  now 
practised  here,  with  the  ceremony  of  holding  up  the  hand 
(no  book  being  used)  shall  be  observed;  .  .  .  (yet)  when 
a  person  declares  that  a  peculiar  mode  of  swearing  is,  in 
his  opinion,  more  solemn  and  obligatory  than  by  holding 


A  CHAPTER  OF   LEGAL  HISTORY  313 

lip  the  hand,  the  oath  may  be  administered  in  such  mode."  ^ 
A  Quaker  may  "  solemnly  and  sincerely  affirm,  under  the 
pains  and  penalties  of  perjury,"  and  so  may  any  one  who 
declares  (and  satisfies  the  court)  that  "  he  has  conscientious 
scruples  against  taking  any  oath  " ;  and  so  m  list  he  who 
is  "  not  a  believer  in  any  religion."  He  who  believes  in 
a  religion  other  than  the  Christian,  "  may  be  sworn  accord- 
ing to  the  peculiar  ceremonies  of  his  religion,  if  there  are 
any  such."  ^ 

In  Massachusetts  then,  all  the  common-law  grounds  of 
witness-exclusion  have  disappeared :  lack  of  religious  belief, 
pecuniary  interest,  being  a  party  to  the  suit  or  a  party's 
husband  or  wife,  and  conviction  of  an  infamous  crime ;  — 
all,  except  the  lack  of  natural  capacity. 

1.  As  to  religious  belief  and  the  oath.  In  this  respect, 
as  in  others,  the  change  was  slow.  The  two  colonies,  at 
Plymouth  and  Massachusetts  Bay,  were  much  distressed 
by  two  peculiar  classes  of  people,  Quakers  and  Indians. 
They  regarded  the  first  of  these  for  a  long  time  as  the  worst 
sort  of  intruders,  as  bringers  of  a  sort  of  spiritual  small- 
pox; and  struggled  to  be  wholly  rid  of  them.  To  relieve 
them  from  the  pressure  of  any  hardship,  by  dispensing,  for 
example,  with  the  necessity  of  an  oath,  would  have  been 
the  last  thing  likely  to  be  thought  of ;  the  effort  was  to  drive 
them  out.  In  England  the  Quakers  had  some  relief  as  early 
as  1695.  It  had  been  found  there,  after  a  long  contest,  that 
the  Quaker  was  a  sort  of  person  who  could  not  be  killed 
off,  or  put  down,  or  driven  out;   he  had  to  be  lived  with. 

1  This  clause  covers  the  case  of  some  Roman  Catholics.  See  the  ex- 
planation of  the  court  to  Bishop  Penwlck,  when  he  inquired  why  It  was 
proposed  to  adopt  In  his  case  a  method  different  from  the  usual  one : 
viz.,  "  It  is  well  understood,  as  matter  of  general  notoriety,  that  those 
who  profess  the  Catholic  faith  are  usually  sworn  on  the  Holy  Evangel- 
ists, and  generally  regard  that  as  the  most  solemn  form  of  oath,  and  ifor 
this  reason  alone  that  mode  is  directed  In  this  court,  in  case  of  admin- 
istering the  oath  to  Catholic  witnesses.  This  is  done  by  the  witness 
placing  his  hand  upon  the  book  whilst  the  oath  is  administered,  and 
kissing  it  afterwards."  The  Reporter  adds :  "  The  oath  was  then  ad- 
ministered to  Bishop  Fenwick  in  this  form."  Com.  v.  Buzzell,  16  Pick. 
153,  156  (1834). 

-  Pub.  St.  Mass.  c.  169,  ss.  13-31  inclusive.  [Now  Rev.  Laws,  c.  175, 
ss.  15-33  inclusive.] 


314  LEGAL  ESSAYS 

Here  it  took  longer  to  find  that  out.  Such  well-intending 
people  as  these  would  indeed,  here  and  there,  melt  in  among 
their  neighbors,  like  other  people;  and  it  seems  to  have 
required  some  effort  on  the  part  of  the  authorities  to  adhere 
to  the  orthodox  view  about  them.  While,  therefore,  in  the 
Plymouth  Colony,  in  1657  and  1658,  laws  were  passed  pro- 
hibiting and  punishing  the  bringing  in  or  entertaining  of 
Quakers,  laws  of  the  same  period  appear  to  have  recognized 
some  of  them  as  freemen.  And  although  in  1661  several 
penalties,  including  whippings,  were  again  imposed  on  new- 
comers, yet  in  1681  it  was  enacted,  on  petition  of  "  several 
of  the  ancient  inhabitants  of  the  town  of  Sandwich,  called 
Quakers,"  that  they  should  have  "  liberty  to  vote  in  the  dis- 
posal of  such  lands,  and  ...  to  vote  for  the  choice  of 
raters,  and  shall  be  capable  of  making  of  rates,  if  legally 
chosen  thereunto  by  the  town  and  persons  aforesaid,  so  long 
as  they  carry  civilly  and  not  abuse  their  liberty."  ^ 

Quakers,  like  all  others,  were  early  required  in  the  Ply- 
mouth Colony  to  take  the  oath  of  allegiance,  "  the  oath  of 
fidelity "  as  it  was  called,  and  on  refusal  were,  at  first, 
ordered  to  leave,  and  afterwards  regularly  fined,  on  being 
summoned  "  at  each  election,"  five  pounds  on  each  refusal.^ 
It  was  not  until  1719,  long  after  the  union  of  the  colonies, 
that  Quakers  were  allowed  to  substitute  for  the  oath  a 
solemn  declaration  of  allegiance.^  On  March  5,  1743-4, 
by  a  law  limited  to  three  years  Quakers  were,  for  the  first 
time,  allowed,  "  upon  any  lawful  occasion,"  instead  of  tak- 
ing an  oath,  to  "  solemnly  and  sincerely  affirm  and  declare 
under  the  pains  and  penalties  of  perjury  " ;  but  they  could 
not  do  this  in  criminal  cases,  as  witnesses  or  on  any  juries, 
nor  could  they,  in  general,  hold  any  office  where  an  oath 
was  then  required.*    This  law  was  afterwards  renewed  for 

'  Plym.  Col.  Rec.  vi.  71.  In  following  the  course  of  events.  It  may 
be  well  to  notice  that  George  Fox,  the  founder  of  the  Quakers,  was 
born  In  1624,  and  began  to  preach  about  1648. 

»  Plym.  Col.  Laws,  76,  130. 

'  Province  Laws,  H.  l.'Sf). 

*  Province  Laws,  Hi.  126.  It  is  interesting  to  see  by  other  parts  of  this 
statute  that  provisions  had  become  necessary  for  cases  when  a  majority 
or  all  of  "  the  assessors  or  collectors  of  any  town  "  shall  be  Quakers. 


A  CHAPTER  OF  LEGAL   HISTORY  315 

ten  years,  and,  in  1759,  it  was  permanently  enacted  and 
made  applicable  also  to  criminal  cases.^  Finally,  by  Stat. 
1810,  c.  127  (February,  1811),  Quakers  were  allowed  to 
affirm  on  all  occasions. 

How  was  it  with  him  who  was  not  a  Quaker,  but  had  like 
scruples  ?  After  the  familiar  way  of  legislators,  no  general 
principle  was  applied  till  later.  Probably  there  were  few 
cases  of  trouble.  One  such  occurred  as  late  as  18 15,^  when 
Judge  Story  committed  for  contempt  a  witness,  not  a 
Quaker,  who  refused  from  conscientious  scruples  to  take 
the  oath.  It  was  the  St.  1824,  c.  91  (P.  S.  c.  169,  s.  16), 3 
which  first  allowed  to  others  the  liberty  earlier  gained  by 
the  Quakers,  whenever  "  required  to  take  any  oath  on  any 
lawful  occasion."  The  constancy  of  that  God-fearing  people 
had  its  final  victory  at  last,  in  working  out  freedom  of  con- 
science for  all. 

The  case  of  that  other  class  of  persons  mentioned  above, 
the  native  Indians,  was  also  a  troublesome  one.  They  could 
not  be  expelled ;  they  also  must  be  lived  with.  The  religious 
condition  of  these  people,  "  the  veriest  ruins  of  mankind 
upon  the  face  of  the  earth,"  as  one  of  the  clergy  called  them, 
was  a  puzzLe  to  the  colonists.^  Saving  the  scanty  converts, 
they  seem  to  have  been  regarded  either  as  wholly  destitute 
of  religion  or  as  worshippers  of  false  gods,  and  even  of  that 
peculiarly  dangerous  false  god,  the  devil.^     How  could  an 

'  Province  Laws,  iv.  180.  A  passage  from  the  diary  of  Chief  .Justice 
Lynde  as  to  a  case  before  him  in  Nantucket  in  July,  1737,  shows  that 
Qualjers  then  served  on  grand  juries ;  and  in  some  cases,  apparently, 
without  taking  the  oath  :  "  13th  Wednesday,  in  the  morning  about  ten, 
in  Mr.  White's  meeting-house,  began  the  trial  of  Abia.  Comfort,  an 
Indian  woman,  against  whom  a  bill  of  indictment  was  drawn  up  and 
presented  ...  to  the  Gr.  .Jury,  whereof  Joseph  .  .  .  was  appointed 
foreman,  with  eleven  more  Englishmen,  but  iXe  and  most  Quakers ;  yet 
on  the  Court's  having  their  hats  off,  and  manifesting  the  decency  of 
their's  too,  they,  some  of  themselves,  and  others  easily  submitted  to 
their  being  taken  off,  and  had  the  Gr.  Jury's  oath  or  declaration  admin- 
istered to  them,  some  holding  up  their  hands." 

^  TJ.  S.  V.  Coolidge,  2  Gallison,  364.  A  similar  case  in  England  is 
mentioned  as  occurring  in  1854.     Powell,  Evidence  (3d  ed.),  29. 

^   [Now  Rev.  Laws,  c.  175,  s.  18.  | 

*  Palfrey,  Hist.  New  Eng.  i.  43-50. 

"  "  And  it  is  ordered  that  no  Indian  shall  at  any  time  Powatc  or 
perform  outward  worship  to  their  False  Gods  or  to  the  Devil,  in  any 
part  of  our  jurisdiction,  whether  they  shall  be  such  as  shall  dwell  here 


316  LEGAL  ESSAYS 

oath  be  administered  to  such  persons?  Could  the  Pilgrim 
or  the  Puritan  allow  before  his  magistrates  the  invoca- 
tion of  Baal  or  of  Satan?  or  the  swearing  in  of  one  who 
knew  no  God  at  all?  Evidently  not.  And  yet  there  was 
constant  occasion  for  Indian  testimony.  For  example, 
Zachariah  Allin,  of  the  Plymouth  Colony,  was  convicted, 
in  1679,  "  by  the  testimony  of  sundry  Indians,"  of  having 
supplied  them  "  with  some  quantities  of  strong  liquors."  ^ 
Although  this  was  a  trial  by  jury-,  yet  it  is  expressly  said 
to  have  been  according  to  "  Chapter  14th  of  our  Book  of 
Laws,  section  the  7th."  Turning  to  this^  we  find  that 
"  It  is  ordered  that  the  accusation,  information,  or  testi- 
mony of  any  Indian  or  other  probable  circumstance,  shall 
be  accounted  sufficient  conviction  of  any  English  person 
or  persons  suspected  to  sell,  trade,  or  procure  any  wine, 
cider,  or  liquors  above  said,  to  any  Indian  or  Indians,  unless 
such  English  shall,  upon  their  oath,  clear  themselves  from 
any  such  act  of  direct  or  indirect  selling;  .  .  .  and  the 
same  counted  to  be  taken  for  conviction  of  any  that  trade 
any  arms  or  ammunitions  to  the  Indians."  This  procedure 
was  enacted  in  the  Massachusetts  Colony  in  1666,  in  the 
Plymouth  Colony  in  1667,  and  later  in  the  Province,  in 
1693-4.3  While,  as  in  Allin's  case,  it  might  be  combined 
with  a  jury  trial,  this  was  really  "  trial  by  oath,"  a  very 
ancient  thing.^  A  touch  of  it  may  be  seen,  in  Massa- 
chusetts, under  a  statute  relating  to  usury,  Stat.  1783, 
c.  55,  as  explained  by  Shaw,  C.  J.,  in  Little  v.  Kogers, 
1  Met.  108,  110  (1840). 

or  shall  come  hither  ;  and  if  any  shall  transgress  this  law,  the  Powawer 
shall  pay  five  pounds,  the  procurer  five  pounds,  and  every  other  counte- 
nancing by  his  presence  or  otherwise  (being  of  age  of  discretion),  twenty 
shillings  ;  and  every  town  shall  have  power  to  restrain  all  Indians  that 
shall  come  into  their  towns  from  profaning  the  Lord's  day."  This  was 
a  Massachusetts  statute  of  1633,  preserved  in  the  "  Laws  of  1660." 
(Whitmore's  ed.,  Boston,  1889)  Part  IL  163.  A  similar  provision  is 
found  in  the  Plymouth  Col.  Laws,  298,  "  Laws  of  1671." 

1  riym.  Col.  Records,  vii.  242,  247. 

=  Plym.  Col.  Laws,  290  ;    Plym.  Col.  Rec.  xi.  234,  23.'>. 

»  Plym.  Col.  Rec.  xi.  219,  206 ;  Plym.  Col.  Laws,  152  ;  4  Mass.  Rec. 
Part  II,  297  ;  Whitmore's  edition  of  Mass.  Laws  of  1660  and  Supple- 
ments, Part  II,  236 ;   1  Prov.  Laws,  151. 

*  Thayer's  Preliminary  Treatise  on  Evidence,  24-34. 


A  CHAPTER  OF  LEGAL   HISTORY  317 

What  was  thus  called  in  the  books  Indian  "  testimony," 
was  probably  not  under  oath.  In  the  sort  of  case  just  re- 
ferred to,  the  Indian  merely  made  a  criminal  accusation. 
How  was  it  in  civil  cases?  An  answer  is  found  in  a  Ply- 
mouth law  of  1674,1  where,  after  reciting  that  many  con- 
troversies arise  between  English  and  Indians,  and  that 
Indians  "  would  be  greatly  disadvantaged  if  no  testimony 
should,  in  such  case,  be  accepted  but  upon  oath,"  "  it  is 
ordered  that  any  court  of  this  jurisdiction  before  whom  such 
trial  may  come,  shall  not  be  strictly  tied  up  to  such  testimo- 
nies on  oath  as  the  common  law  requires,  but  may  therein 
act  and  determine  in  a  way  of  Chancery,  valuing  testi- 
monies not  sworn  on  both  sides  according  to  their  judgment 
and  conscience."  In  March,  1679-80,  in  Dexter  &  wife 
V.  Lawrance  (7  Plym.  Col.  Records,  222,  223),  in  an  action 
of  trespass  on  land  of  the  female  plaintiff,  purchased  by  her 
of  an  Indian,  the  jury's  verdict  ran  thus :  "  If  Indian  testi- 
mony be  good  in  law,  we  find  for  the  plaintiff  five  shillings 
damage  and  the  cost  of  the  suit;  but  if  not  good  in  law, 
we  find  for  the  defendant."  It  is  added :  "  The  charges  of 
the  suit  is  three  pound,  which  was  ordered  by  the  court  to 
the  plaintiff."  It  seems  a  fair  interpretation  that  this 
means  judgment  for  the  plaintiff,  and  so  a  holding  that 
"  Indian  testimony  "  was  good  in  law.  It  will  be  observed 
that  the  suit  was  between  white  persons,  and  that  the 
statute  related  only  to  controversies  between  whites  and 
Indians.2 

In  Smith  v.  Freelove  (7  Plym.  Col.  Pec.  255,  256),  in 
1682,  in  an  action  of  trespass  relating  to  Hog  Island  in 
Plymouth,  while  John  Alden,  "  aged  eighty-two  years,  .  .  . 

1  Plym.  Col.  Records,  xi.  236  ;    Plym.  Col.  Laws,  171. 

^  In  Rhode  Island,  in  1673,  the  General  Assembly,  after  directing 
the  trial  of  an  Indian  charged  with  murdering  another  Indian,  by  a  jury 
of  "  six  Englishmen  and  six  Indians,"  ordered  "  that,  in  all  cases  of  this 
nature  wherein  one  Indian  hath  a  complaint  against  another  Indian,  the 
testimony  of  an  Indian  may  be  taken,  and  in  the  Judgment  of  the 
jury  to  accept  or  refuse  the  evidence  as  it  were  the  testimony  of  an 
Englishman."  2  R.  I.  Col.  Rec.  509.  [See  Judd's  History  of  Hadley, 
263,  for  trial  by  jury  of  four  Indians  for  murdering  a  white  man  in 
1696.] 


318  LEGAL   ESSAYS 

being  one  of  the  first  comers  into  Xew  p]ngland  to  settle 
at  or  about  Plymouth,  which  now  is  about  sixty-two  year 
since,"  in  giving  his  testimony  is  regularly  sworn,  —  four 
"  ancient  Indians  ...  do  affirm  and  testify  "  merely,  the 
magistrate  certifying  that  these  '"  testimonies  was  sub- 
scribed to  and  declared  to  be  the  real  truth." 

There  are  instances,  and  probably  many  of  them,  in  the 
court  records  of  the  Province,  in  the  eighteenth  century, 
where  Indian  testimony  was  introduced.  In  some  the 
memorandum  is  added,  "  Sworn  in  court,"  and  '*  Attested 
in  court."  In  some  it  is  merely  described  as  "  testimony." 
And  again,  as  in  the  deposition  of  "  Hepsabe  Seeknout, 
widow  of  Joshua  Seeknout,  late  Sachem  of  Chappaquid- 
dick,"  dated  Oct.  1,  1717,  it  is  said  to  be  "taken  in  court 
and  spoken  as  in  the  presence  of  God."  We  may  observe 
this  same  form  of  injunction  formerly  given  in  England 
to  witnesses  brought  forward  by  one  on  trial  for  treason  or 
felony,  none  of  whom  could  be  sworn  until  1695,  in  high 
treason,  and  1702  in  felony. ^  "  Look  you  here,  friend," 
said  Chief  Justice  North,  in  1681,  at  the  trial  of  College 
for  high  treason,  when  the  accused  called  one  of  his  wit- 
nesses, "you  are  not  to  be  sworn;  but  when  you  speak 
in  a  court  of  justice  you  must  speak  as  in  the  presence  of 
God,  and  only  speak  what  is  true."  ^ 

It  may  be  added,  that  in  criminal  trials  and  inquests 
where  Indians  were  concerned,  there  was  a  common  prac- 
tice of  adding  Indians  to  the  jury,  much  as  witnesses  to 
deeds  were  added  to  juries  in  the  old  days  of  the  English 
law,  but  for  a  different  reason.^  In  June,  1675,  in  the 
Plymouth  Colony,  three  Indians  were  tried  for  the  murder 
of  another  Indian  and  convicted.  The  names  of  the  twelve 
jurors  are  given,^  and  it  is  added :  "  It  was  adjudged  very 
expedient  by  the  court  that  together  with  the  English  jury 
above  named,  some  of  the  most  indifferentest,  gravest,  and 

'  Stat.  7  Wm.  III.  c.  3,  and  Stat.  1  Ann,  c.  9  ;    2  Hale,  PI.  Cr.  28,3. 

=  8  How.  St.  Tr.  626. 

^  Thayer's  Preliminai-y  Treatise  on  Evidence,  97. 

*  5  Klym.  Col.  Uec.  108. 


A  CHAPTER  OF  LEGAL  HISTORY  319 

sage  Indians  should  be  admitted  to  be  with  the  said  jury, 
and  to  help  to  consult  and  advise  with,  of,  and  concerning 
the  premises.  (Then  follow  their  names.)  These  fully 
concurred  with  the  above  written  jury."  The  verdict  was 
guilty;  it  began:  "  We  of  the  jury,  one  and  all,  both  Eng- 
lish and  Indian,  do  jointly  and  with  one  consent  agree  upon 
a  verdict,"  &c.^ 

AVhile  converted  Indians  might  of  course  be  sworn,  it 
is,  I  believe,  matter  of  conjecture  how  far,  if  at  all,  uncon- 
verted Indians  were  formerly  admitted  to  the  oath  in 
Massachusetts.  They  were  either  "  worshippers  of  false 
gods  "  or  atheists.  The  latter  could  not  testify  here  until 
1859.  The  former,  after  the  case  of  Omichund  v.  Barker,^ 
in  1744—5,  might  have  testified  under  the  forms  recognized 
in  their  religion,  when  they  had  any;  and  it  may  be  that 
a  search  in  our  Judicial  Records  under  the  Province  will 
reveal  instances  of  that  practice.    I  know  of  no  clear  case.^ 

In  Omichund  v.  Barker,  it  was  declared  to  be  the  common 
law  of  England  that  heathens  (in  that  case,  native  Hindoos) 

'  A  like  case,  in  1682,  is  found  in  Plym.  Col.  Rec.  vi.  98.  the  case  of 
an  Indian  indicted  for  rape  en  a  white  girl.  The  names  of  the  twelve 
jurymen  are  given  ;  "  unto  which  English  jury  four  Indian  men  present 
were  added,  viz.  ;  "  etc.  In  Chief  Justice  Lynde's  Diary,  under  date  of 
June  14,  1732,  he  speaks  of  holding  court  at  Nantucket  with  a  "  grand 
jury  of  eighteen,  a  3d  Indians."  Bills  of  indictment  against  several 
Indians  were  under  investigation.  Again,  on  July  13,  1737,  It  appears 
that  the  grand  jury  of  twelve,  mostly  Quakers,  above  mentioned  (p.  315, 
n.  1),  had  also  four  Indians  added  to  their  number,  and  they  found  btlla 
vera  against  an  Indian  woman  charged  with  murder  for  concealing  the 
death  of  a  bastard  child. 

^  1  Atk.  21  :    s.  c.  2  Eq.  Cas.  Ab.  397  ;    Willes,  538. 

^  The  opportunity  for  such  a  search  will  soon  exist  when  the  thor- 
ough and  admirably  devised  work  of  collecting,  arranging,  and  indexing 
our  early  judicial  records,  now  going  forward  under  the  direction  of 
John  Noble,  Esq.,  Clerk  of  the  Supreme  Judicial  Court  for  the  County 
of  Suffolk,  shall  have  been  completed.  To  his  courtesy  I  am  indebted 
for  a  number  of  the  references  here  used.  I  must  not  omit  to  mention 
that  courts  were  established  among  the  Indians,  in  some  cases,  at  their 
request,  and  Indians  were  appointed  to  try  small  causes  among  their 
people.  Mass.  Records,  ii.  188  (1647).  Chief  Justice  Lynde  in  his 
Diary  (p.  28)  speaks  of  visiting  an  Indian  magistrate  at  Nantucket,  in 
1732,  —  Corduda,  "  a  good  and  strict  old  man."  It  is  not  necessarily  to 
be  concluded  that  any  oath  was  administered  to  the  unconverted.  But 
I  observe  that  where  Indians  were  a  part  of  coroners'  juries,  upon  the 
death  of  an  Indian,  the  verdict  in  some  cases  expressly  says  that  it  is 
under  oath,  and  no  qualification  is  made  as  to  the  Indians.  Such  a  case 
occurred  at  Barnstable  in  1720,  and  at  Yarmouth  about  the  same  time. 
It  may  be  conjectured  that,  as  time  went  on,  Indians  would  generally 


320  LEGAL  ESSAYS 

might  testify  when  sworn  according  to  the  forms  and  cere- 
monies required  by  their  own  religion;  on  the  principle 
that  no  more  was  essential  for  an  oath,  than  that  witnesses 
should  "  believe  in  a  God,  and  that  he  will  punish  them  if 
they  swear  falsely."  ^  The  doctrine  was  there  laid  down 
that  it  was  not  necessary  to  believe  in  a  future  existence, 
but  only  in  a  God  who  will  punish  in  the  present  state; 
that  greater  credit  might  be  given  to  a  witness  who  believed 
in  divine  punishments  hereafter ;  2  and  that  "  such  infidels, 
if  any  such  there  be,  who  either  do  not  believe  in  a  God,-*^ 
or,  if  they  do,  do  not  think  that  he  will  either  reward  or 
punish  them  in  this  world  or  in  the  next,  cannot  be  wit- 
nesses in  any  case  nor  under  any  circumstances."  This 
case,  therefore,  disposed  of  all  diflficulties,  growing  out  of 
the  form  of  the  oath,  or  the  ceremonies  accompanying  it,  in 
the  case  of  all  sorts  of  persons  whose  religious  belief  made 
them  amenable  to  any  kind  of  an  oath. 

It  is  to  be  remembered,  of  course,  that  before  the  case 
of  Omichund  v.  Barker,  and  even  long  before  it,  the  prac- 
tice of  the  courts  may  have  conformed  to  the  doctrine  there 

be  admitted  to  the  oath  when  they  did  not  object,  on  a  presumption  of 
their  being  converted  or,  at  any  rate,  of  their  recognizing  its  obligation. 
[The   following  interesting  extract  from   the  records  was  given   to 
Professor  Thayer  by  Mr.  Noble  soon  after  this  article  was  published  : 
"  2906 

Complaint  against  Zachalenaco  otherwise  called  Zechariah  an  Indian 
man  of  Kecomochog,  an   Indian   town,   for  murdering  an   Indian   man 
called  Wawhanonaw. 
Witnesses. 

Benja.  Sabin,  Senr.       i      b-^^uck 
Jno.  Chandler  Junio'  1      '^^S^aa 
Henry  Papamawanet 
(  Cheawanchbnet  alias 
(  Dig  Cellee 
Nawaspeto,  a  woman 
Monehaquato,  the  murdered  man's  squaw 

AwEsiOAME,  a  girl  of  11  years  old  daughter  to  the  murdered  man 
Jyamusque,  a  woman 
Joseph  Robins 

The  Indian  witnesses  (all  saving  ye  little  girl)  were  sworn  to  be  sent 
to  ye  Grand  Jury 
Apr.  24,  1694.  Sam.  Sewall."] 

1  Per  Wllles.  C.  J.,  Willes  Rep.  at  p.  549. 

"  And   so  Hunscom   v.   Hunscom,    15   Mass.    184    (1818).     Compare 
the  note  to  that  case,  as  to  the  P^ngllsh  law. 
*  So  Thurston  r.  Whitney,  2  Cush.  104. 


A  CHAPTER  OF  LEGAL   HISTORY  321 

laid  down.  That  case  itself  only  confirmed  the  action  of 
Lord  Hardwicke  in  ordering  the  taking  of  a  deposition 
in  1739.  And  another  instance  of  the  same  sort  in  the 
Privy  Council  is  reported  by  Sir  John  Strange,  as  of 
Dec.  9,  1738.1  '•  Qn  a  complaint  of  Jacob  Fachina  against 
General  Sabine  as  Governor  of  Gibraltar,  Alderman  Ben 
Monso,  a  Moor,  was  produced  as  a  witness  and  sworn  upon 
the  Koran.    I  made  no  objection  to  it,"  ^ 

After  the  Revolution,^  a  statute  was  passed  that  "  In 
the  administration  of  oaths  in  this  Commonwealth,  the 
ceremony  of  lifting  up  the  hand,  as  heretofore  used,  shall 
be  practised,  with  such  exceptions  as  to  Mahometans  and 
other  persons  who  believe  that  an  oath  is  not  binding  unless 
taken  in  their  accustomed  manner,  as  the  several  courts 
shall  find  necessary  in  the  execution  of  the  laws."  The 
practice  under  this  statute  appears  to  have  been  liberal, 
and  to  have  followed  that  of  the  English  court  in  Colt  v. 
Button,  2  Sid.  6  (1657),  in  allowing  a  variation  from  the 
common  form,  not  merely  where  this  was  thought  not  bind- 
ing, but  where  it  was  thought  less  solemn.  And  so  the 
court  was  able  to  answer  the  Eoman  Catholic  Bishop  as  it 
did  in  1834.'*  This  practice  was  sanctioned  by  Eev.  Stat. 
c.  94,  s.  8  (Nov.  1835),  allowing  it  "when  the  court  .  .  . 
shall  be  satisfied "  of  a  witness's  belief  as  to  the  greater 
solemnity  of  another  form,  —  changed  by  Stat.  1873,  c.  212, 
s.  1,  to  "  when  a  person  .  .  .  shall  declare."  ^ 

Eegarding  the  Indians  as  atheists,  they  would  regularly 
have  been  wholly  excluded  from  giving  testimony;  for 
atheists,  as  I  have  said,  were  not  admitted  to  testify  in  this 

1  2  strange.  1104. 

2  Compare  a  case  of  swearing  a  Jew  on  the  Old  Testament,  in  1667- 
68,  Robely  v.  Langston,  2  Keble,  314. 

»  Stat.  1797,  c.  3.5,  s.  10. 

*  Com.  V.  Buzzell,  16  Pick,  at  p.  156 ;  supra,  p.  313,  n.  1.  Compare 
Vail  V.  Nickerson,  6  Mass.  262  (1810)  and  Bonnier,  Preuvea  (4th  ed.), 
i.  ss.  420,  424. 

*  And  so  now  in  Pub.  Stat.  c.  169,  s.  14.  [Now  Rev.  Laws,  c.  175, 
s.  16.]  Rev.  Stat.  c.  94,  s.  11,  had  also  introduced  the  express  provision 
previously  mentioned,  that  believers  in  any  other  than  the  Christian 
religion  might  be  sworn  according  to  any  peculiar  ceremonies  of  their 
religion. 

21 


322  LEGAL  ESSAYS 

State  until  the  enactment  of  the  General  Statutes  (Dec.  28, 
1859),  where  it  was  provided  (c.  131,  s.  12;  now  Pub,  St. 
c.  169,  s.  17),^  that  "every  person  not  a  believer  in  any 
religion  shall  be  required  to  testify  truly  under  the  pains 
and  penalties  of  perjury."  ^  But  the  politic  and  sensible 
arrangements  about  Indians  which  were  actually  adopted 
have  been  already  stated.  For  such  an  exception  there  was 
not  only  the  usage  as  to  the  witnesses  of  persons  accused 
of  high  treason  or  felony,  "mentioned  above  (p.  318),  but 
there  was  the  nearer  analogy  of  children  too  young  to  take 
an  oath,  in  rape  cases.-^  This  practice  as  to  young  children 
was,  indeed,  declared  bad,  by  a  divided  court,  in  Powell's 
Case,  Leach  (4th  ed.),  110  (1775),  and  by  a  unanimous 
court  in  Brasier's  Case,  ib.  199  (1779).  But  it  has  recently 
been  revived  in  England,  by  statute,  in  a  similar  class 
of  cases. 

2.  Passing  from  the  oath  and  the  religious  disabilities  to 
those  arising  from  a  pecuniary  interest  in  the  litigation 
and  from  legal  infamy,  —  these  ^  were  for  the  first  time 
attacked  and  dealt  with  together  in  1851,  in  the  first  Massa- 
chusetts Practice  Act,  a  statute  bringing  about  extensive 
reforms  in  civil  procedure  at  common  law.  A  commission, 
appointed  in  1849  by  the  Governor,  in  pursuance  of  a  joint 
legislative  resolve  of  the  same  year,  moved  by  B.  R.  Curtis, 
then  a  member  of  the  Massachusetts  House  of  Eepresenta- 
tives,  and  consisting  of  himself,  R.  A.  Chapman,  after- 
wards Chief  Justice  of  the  State,  and  N.  A.  Lord,  another 
distinguished  lawyer,  in  a  report  of  permanent  value, 
addressed  to  the  legislature  of  1851,  recommended,  among 
many  other  things,  the  abolition  of  the  disqualification  of 
witnesses  for  crime  or  interest.^     The  commissioners  were 

'  [Now  Rev.  Laws,  c.  175.  s.  19.] 

2  In  England,  this  was  partly  accompUshed  in  1854  by  Stat.  17  and 
18  Vict.  c.  125,  s.  20;  It  was  completed  in  1869,  by  Stat.  32  and  33 
Vict.  c.  6,  s.  4.  See  the  later  comprehensive  statute  of  1888,  Stat.  51 
and  52  Vict.  c.  46. 

»  1  Hale,  PI.  Cr.  634  ;    2  ib.  279. 

*  Abolished  in  England  by  Lord  Denman's  Act  in  1843,  Stat.  6  and  7 
Vict.  c.  85. 

•  Hall's  Mass.  Practice  Act  of  1851,  150-156. 


A  CHAPTER  OF  LEGAL   HISTORY  323 

unwilling  to  admit  parties  to  testify,  but  they  proposed 
allowing  the  examination  of  parties,  before  the  trial,  upon 
written  interrogatories.  In  making  their  propositions  as 
to  crime  and  interest,  they  said,  referring  to  the  English 
legislation  of  1843,  "  We  have  been  a  good  deal  influenced 
by  the  course  of  legislation  in  England."  At  that  time 
a  measure  for  allowing  parties  to  the  litigation  to  testify 
had  been  pending  in  Parliament  for  two  years,  but  was  not 
yet  adopted.  It  passed,  however,  in  England,  almost  im- 
mediately afterwards,  in  the  very  year,  1851,i  which  saw 
the  enactment  of  the  commissioners'  recommendations  in 
Massachusetts.  This  Practice  Act  of  1851  (c.  233)  was 
repealed  the  next  year,  in  order  to  change  some  matters 
of  detail,  but  was  mainly  re-enacted  as  Stat.  1852,  c,  312 ; 
and  in  all  respects  material  to  the  present  discussion  the 
two  statutes  were  the  same.^ 

3.  The  case  of  parties  to  the  suit  in  civil  proceedings  was 
not  disposed  of  until  1856.  The  Stat.  1856,  c.  188,  made 
them  competent  and  compellable  in  all  cases,  with  quali- 
fications which  were  abolished  from  time  to  time.  The  case 
of  the  husband  and  wife  of  the  party  to  a  civil  suit  was 
dealt  with  in  the  Stat,  of  1857,  c.  305,  and  in  later  ones ;  ^ 
but  the  present  simple  rule  which  makes  the  husband  or 
wife  of  a  party  competent  and  compellable  in  all  civil 
proceedings,  and  competent  but  not  compellable  in  all 
criminal  proceedings,  was  not  adopted  till  the  Stat.  1870, 
c.  393. 

4.  The  admission  of  the  accused  person  in  all  criminal 
proceedings,  with  the  qualifications  stated  before  {supra, 
p.  312 ) ,  was  allowed  by  Stat.  18G6,  c.  260.  This  remarkable 
inroad  upon  the  common  law  had  been  first  made  in  Maine 

1  Stat.  14  and  1.5  Vict.  c.  99.  And  see  Stat.  32  and  3.3  Vict.  c.  68 
(1869). 

"  As  regards  interrogatories  to  parties  before  the  trial,  tliis  con- 
venient introduction  of  equitable  discovery  into  common-law  practice 
tiad  long  been  known  in  some  other  States  of  this  country.  In  England 
it  was  not  introduced  until  1854  by  the  Stat.  17  and  18  Vict.  c.  125, 
s.  50  et  neq. 

8  In  England,  in  1853,  by  Stat.  16  and  17  Vict.  c.  83. 


324  LEGAL  ESSAYS 

by  a  statute  of  1864,  c.  280 ;  and  it  has  long  been  the  law 
in  most  of  our  States.  It  was  introduced  in  the  Federal 
jurisdiction  by  a  statute  of  March  16,  1878.^ 

The  enactment  in  Maine  of  this  sensible  and  very  im- 
portant change,  not  yet  accomplished  in  England,  is  under- 
stood to  have  been  principally  due  to  the  efforts  of  Chief 
Justice  Appleton,  an  early  disciple  of  Bentham,  and  author 
of  a  little  treatise  on  Evidence,  published  in  1860.  This 
book  was  largely  a  reprint  of  an  early  set  of  articles 
published  thirty  years  earlier  in  the  American  Jurist,^ 
eagerly  advocating  the  English  reformer's  views.  It  was 
mainly  Bentham's  influence  working  through  younger  men, 
such  as  Denman,  Brougham,  and  Taylor,  the  writer  on 
Evidence,  that  overthrew  so  rapidly  in  England  the  system 
of  witness  exclusion.  It  was  the  English  example  that 
moved  us.  And  as  we  see,  it  was  the  same  powerful  influ- 
ence of  Bentham  that  has  finally  carried  the  reform  on  this 
side  of  the  water  to  a  point  not  yet  reached  in  his  own 
country.^ 

>  20  U.  S.  Stat,  at  LarRe,  30. 

=  BeglnnlnK  in  Vol.  IV.  p.  280. 

'  "  I  do  not  know."  says  Sir  Henry  Maine,  "  a  single  law  reform 
effected  since  Bentham's  day  whicii  cannot  be  traced  to  his  influence." 
Early  History  of  Institutions  (London,  1880),  397. 


TKIAL    BY   JURY   OF    THINGS    SUPEE- 
E^ATURAL 

[This  paper  was  first  read  before  the  dining  club  referred  to 
on  page  153  above,  and  was  afterwards  published  in  the  Atlantic 
Monthly  for  April,  1890    (vol.  65,  p.  465).] 

The  law  can  deal  with  the  supernatural  —  with  such 
questions  as  the  existence  of  God  or  the  devil  —  in  any  way 
that  it  chooses.  Two  ways  have  been  adopted.  One  is  that 
of  assuming  their  truth  and  reality,  and  then  legislating 
upon  that  basis,  in  such  a  way  as  leaves  open  no  question 
of  fact  about  them;  directing  certain  conduct,  forbidding 
certain  other  conduct.  The  volume  of  our  oldest  Anglo- 
Saxon  laws  begins  with  an  assumption  of  the  existence  of 
God.  It  is  providing  a  penalty  for  stealing,  and  opens  thus : 
"  The  property  of  God  and  of  the  Church  twelvefold."  This 
is  the  first  sentence  in  the  long  annals  of  our  recorded  Eng- 
lish legislation,  now  reaching  back  for  nearly  thirteen 
hundred  years.  The  existence  of  God  has  always  been 
assumed  in  English  law;  and  so  the  English  Common- 
wealth punished  capitally  a  denial  that  God  exists,  and  any 
denial  of  his  leading  attributes  such  as  his  omnipresence, 
of  the  Trinity,  of  certain  things  about  Christ,  of  the  resur- 
rection of  the  dead,  etc.  It  is  laid  down  by  high  authority 
in  England  to-day,  although  this  is  controverted,  that  it 
is  punishable  as  blasphemy  at  common  law  to  deny  the 
truth  of  Christianity  or  the  existence  of  God.  In  the 
opinion  of  Mr.  Justice  Stephen,  it  is,  in  point  of  strict  law, 
criminal  blasphemy  in  England  to  sell,  or  even  lend,  a 
copy  of  Strauss's  ''  Life  of  Jesus,"  or  Eenan's  work  of  the 
same  name,  or  certain  works  of  Comte,  AYhatever  may  be 
the  exact  truth  about  that,  yet  in  England  always,  and  for 
the  most  part  here,  the  plan  has  been  pursued  of  asserting 


326  LEGAL  ESSAYS 

and  sustaining  by  law  the  truth  of  certain  opinions  about 
the  supernatural.  Even  now  the  phrase  is  familiar  that 
"  Christianity  is  part  of  the  common  law."  This  is,  indeed, 
a  highly  figurative  expression,  very  likely  to  be  misunder- 
stood, the  import  of  which  may  be  best  surmised  by  remem- 
bering that  the  old  judges  also  said  that  the  "  almanac  is 
part  of  the  common  law."  It  is  true  in  a  sense,  but  by  no 
means  in  a  literal  sense.  Xow,  under  any  such  laws  as  these 
which  I  have  just  referred  to,  or  under  our  own  laws  against 
blasphemy,  which  rather  deal  with  a  certain  objectionable 
method  of  handling  given  opinions  than  with  the  sober  and 
decent  denial  of  them,  there  is  no  chance  left  for  any  legal 
discussion  as  to  the  reality  or  truth,  in  point  of  fact,  of 
these  things;  that  is,  of  the  existence  of  God,  the  nature 
of  Christ,  and  the  like. 

But  there  is  another  way.  Formerly,  legislators  did  some- 
times leave  open  a  question  of  fact  as  to  the  existence  and 
the  operation  of  supernatural  influence.  When  they  tried 
people  for  witchcraft,  it  was  a  question,  not  indeed  whether 
there  were  a  devil  and  evil  spirits  able  to  communicate  with 
men  and  to  operate  among  them,  for  the  truth  of  this  was 
assumed,  but  whether,  on  a  given  occasion,  these  creatures 
had  actually  been  operating  in  league  with  the  accused  per- 
sons and  in  a  certain  way.  That  is  a  sort  of  question  which 
our  system  of  law  has  not  and  never  had  any  suitable 
machinery  for  determining;  and  so  in  recent  times  we  do 
not  take  this  course.  But  suppose  we  did,  how  should  we 
deal  with  the  question?  Precisely  as  they  formerly  dealt 
with  it,  precisely  as  we  now  deal  with  any  other  question 
of  fact,  —  by  calling  witnesses,  by  expert  testimony,  and 
by  a  jury,  or,  it  may  be,  a  judge;  and  this  was  the  same 
machinery  that  our  ancestors  used  in  the  witchcraft  cases. 
When  Ruskin  was  brought  into  court,  some  3'ears  ago,  for 
libelling  Whistler,  the  artist,  by  some  highly  flavored  re- 
marks about  his  pictures  and  his  capacity,  the  artistic  merit 
of  these  works  was  submitted  to  the  decision  of  a  jury: 
the  pictures  were  hung  up  before  them,  and  artists  like 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL       327 

Burne-Jones  and  Rossetti  were  called  in  as  expert  witnesses 
to  aid  the  jury  by  their  opinions.  And  so  it  was,  a  few 
years  ago,  when  the  sculptor  Belt  brought  a  like  inquiry 
before  a  London  jury,  who  sat  upon  the  question  of  his 
capacity  to  do  work  of  any  artistic  worth,  examined  his 
busts,  with  a  collection  of  which  the  court-room  was  fur- 
nished, and  had  to  hear,  digest,  and  pass  judgment  upon 
the  expert  opinions  of  the  leading  artists  of  England.  The 
Londoners  laughed  at  all  this,  and  were  reminded,  they  said, 
of  the  fable,  —  how  the  beasts  of  the  field  quarreled  as  to 
which  should  be  greatest  among  them,  and  called  in  a 
passing  crow  to  settle  the  question.  They  spoke  also  in 
jest  of  a  judge  who  once  proposed  to  end  the  everlasting 
controversy  over  fate  and  free  will  by  making  up  what  the 
lawyers  call  a  "  special  case,"  and  arguing  it  out  in  banc. 
It  was,  to  be  sure,  a  sorry  sight.  The  tribunal  was  not 
fit  for  the  task,  but  it  was  the  best  that  the  law  could 
furnish.  And  now,  if  the  question  of  the  existence  of  super- 
natural intelligences  and  their  influence  should  ever  be  sub- 
mitted to  our  courts  for  decision,  it  would  be  before  just 
such  a  tribunal,  either  a  jury  or  a  judge,  and  upon  just 
such  proofs  that  it  would  have  to  be  determined.  Legally 
speaking,  the  fundamental  facts  about  religious  truth  as 
manifested  upon  any  given  occasion  might  be  settled  one 
way  to-day  and  another  way  to-morrow,  according  as  differ- 
ent juries  should  find. 

It  is  not  impossible  that  we  may  yet  see  something  of 
this  sort  done  about  Spiritualism;  that  is  to  say,  may  see 
the  question  passed  upon  whether  it  is  or  is  not  true.  But 
so  far,  in  modern  times,  such  things  do  not  come  up  in  this 
way.  When  Spiritualists  get  into  court  nowadays,  it  is  on 
the  charge  of  defrauding  people  and  using  undue  influence, 
as  in  the  case  of  Home  in  England,  twenty  years  ago,  who 
was  compelled  to  return  several  hundred  thousand  dollars' 
worth  of  property  to  a  woman  of  seventy-five,  a  Mrs.  Lyon, 
who  had  given  it  to  him  on  the  faith  of  certain  alleged 
messages  from  her  deceased  mother ;  it  was  a  mere  question 


328  LEGAL   ESSAYS 

of  undue  influence,  of  the  abuse  of  a  relation  of  confidence.' 
And  so  of  the  case  of  a  Mrs.  Fletcher,  who,  a  few  years  ago, 
was  found  guilty,  in  London,  of  obtaining  property  by  false 
pretenses  and  conspiracy.  She  has  written  a  book  about 
it,  and  insists  that  her  spiritual  communications  were  genu- 
ine, and  so  the  pretenses  were  not  false ;  and  that  the  court 
wrongly  rejected  an  offer  on  her  part  to  prove  them  true, 
and  so  condemned  her  wrongly.  But  it  appeared  to  the 
tribunal  like  a  pretty  vulgar  case  of  f raud.^  The  court  left 
to  the  jury  fairly  the  question  of  her  own  belief  in  the  mani- 
festations, which  was  the  main  thing.  In  like  manner,  the 
Eosses  in  Boston,  not  long  ago,  were  arrested  for  defraud- 
ing; and  in  England,  a  few  years  since,  a  Spiritualist  was 
convicted,  under  an  old  statute,  as  being  a  "  rogue  and 
vagabond  "  for  using  these  means  to  defraud. 

But  the  indictment  of  Mrs.  Fletcher  on  the  occasion 
above  named  also  included  a  charge  of  pretending  "  to  ex- 
ercise divers  kinds  of  witchcraft,  sorcery,  enchantment,  and 
conjuration."  That  was  under  an  existing  statute  in  Eng- 
land, —  a  law  that  "  every  one  who  pretends  to  exercise 
.  .  .  any  kind  of  witchcraft,  sorcery,  enchantment,  or  con- 
juration .  .  .  commits  a  misdemeanor,"  and  must,  upon 
conviction,  be  imprisoned  for  a  year,  etc.  This  calls  for 
no  result,  such  as  defrauding ;  it  is  merely  a  pretending  to 
exercise.  That  law  was  enacted  in  1736,  at  the  same  time 
that  the  former  law  of  1603,  which  had  been  passed  to 
please  King  James  when  he  came  to  the  throne,  was  re- 
pealed.   The  former  law  had  made  it  a  capital  crime,  with- 

1    [Lyon  V.  Home,  L.  R.  6  Eq.  655.] 

^  [Compare  Dean  v.  Ross.  178  Mass.  397,  402,  where  the  court  said: 
"  The  defendant's  last  two  contentions  are  that  no  one  can  say  that 
spirits  do  not  speals  through  mediums,  and  that  If  the  deception  was  so 
obvious  that  the  plaintiff  ultimately  found  It  out  she  cannot  rely  on 
having  been  deceived  by  it  but  ought  to  have  found  It  out  before.  As 
to  the  first  contention  it  is  enough  to  say,  without  going  further,  that 
the  defendant  did  not  rest  her  case  on  the  truth  of  her  representations 
that  the  plaintiff's  dead  husband  spolte  to  the  plaintiff  through  her, 
the  defendant,  but  on  the  flat  denial  of  the  whole  story  told  by  the 
plaintiff ;  and  of  the  second  contention  it  is  enough  to  say  that  the 
defendant  made  the  representations  to  the  plaintiff  immediately  after 
the  death  of  her  first  husband,  and  her  eyes  seem  to  have  been  opened 
at  or  about  the  time  she  was  married  to  her  second  husband."] 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL      329 

out  benefit  of  clerg}.,  to  "use,  practice,  or  exercise  any 
witchcraft,  enchantment,  charm,  or  sorcery,  whereby  any 
one  shall  be  killed,  .  .  .  pained  or  lamed  in  his  body  " ;  and 
also  "  to  consult,  covenant  with,  entertain,  employ,  fee,  or 
reward  any  evil  or  wicked  spirit,  to  or  for  any  intent  or 
purpose."  This  law  hardly  supports  Selden's  well-known 
remark  about  it :  "  The  law  against  witches  does  not  prove 
there  be  any,  but  it  punishes  the  malice  of  those  people 
who  use  such  means  to  take  away  men's  lives ;  if  one  should 
profess  that  by  turning  his  hat  thrice  and  crying  buz  he 
could  take  away  a  man's  life,  though  in  truth  he  could  do 
no  such  thing,  yet  this  were  a  just  law  made  by  the  state 
that  whosoever  should  turn  his  hat  thrice  and  cry  buz,  with 
the  intention  to  take  away  a  man's  life,  should  be  put  to 
death."  The  law  does  not,  to  be  sure,  prove  that  there  be 
any  witches,  but  certainly  it  assumes  the  reality  and  possi- 
bility of  witchcraft  and  of  commerce  with  evil  spirits.  In 
the  trial,  then,  of  cases  arising  under  this  law,  it  became  a 
mere  question  of  fact  whether  in  reality  a  particular  person 
did  practise  witchcraft  and  deal  with  spirits,  or  not.  But 
the  law  of  1736,  which  is  the  existing  law,  deals  only  with 
pretending  to  exercise,  etc.  An  English  judge  of  our  own 
day  has  raised  the  question  whether  it  would  be  a  good 
defense,  under  the  present  law,  to  prove  that  the  accused 
not  only  pretended  to  practise  witchcraft,  but  actually  did 
it.  I  suppose  that  it  would  not.  But  if  it  Avould,  then  we 
might  see  the  question  of  the  truth  of  witchcraft  submitted 
to  a  jury  to-day,  as  Mrs.  Fletcher  tried  to  leave  the  question 
of  the  reality  of  her  communication  with  spirits. 

There  was  a  period  of  nearly  two  hundred  years  during 
which  such  allegations  had  to  be  passed  upon  by  courts  of 
justice  in  England,  in  administering  the  ordinary  laws  of 
the  land;  and  especially  during  the  period  of  one  hundred 
and  thirty  years  after  the  act  of  King  James.  In  Scot- 
land, also,  they  did  it,  and,  as  we  all  know,  here. 

I  am  going  to  examine  a  little  carefully  two  famous 
trials  of  this  sort  in  the  seventeenth  century,  one  in  Eng- 


330  LEGAL  ESSAYS 

land  and  one  in  Scotland,  with  a  view,  especially,  to  mark 
the  way  in  which  legal  machinery  worked,  in  performing  so 
singular  a  task  as  that  of  passing  on  the  truth  and  reality  of 
witchcraft.  I  pass  by  the  New  England  cases,  because  they 
are  but  poor  illustrations  of  anything  that  can  be  called 
legal.  There  was,  I  believe,  no  lawyer  engaged  in  the  trial 
of  the  Salem  witches,  either  on  the  bench  or  at  the  bar, 

I.  The  first  of  the  cases  1  refer  to  was  the  famous  one 
of  the  so-called  "  Suffolk  Witches,"  tried  before  Sir  Matthew 
Hale  at  Bury  St.  Edmonds,  in  1664,  for  bewitching  seven 
children.^  This  case  has  a  special  interest  because  it  was 
one  of  the  authorities  relied  upon  by  the  court  that  con- 
demned so  many  unhappy  persons  at  Salem,  twenty-eight 
years  afterwards.  "  They  consulted,"  says  Cotton  Mather 
(Upham's  "History  of  Witchcraft,"  ii.  361),  "the  prece- 
dents of  former  times,  and  the  precepts  of  learned  writers 
about  witchcraft,  as  Keble  on  the  Common  Law,  .  .  .  also 
Sir  Matthew  Hale's  Trial  of  Witches,  printed,  Anno,  1682." 
The  testimony  included  statements  by  the  relatives  of  the 
children  as  to  their  remarkable  behavior,  which  they  them- 
selves had  seen;  of  certain  experiments  upon  three  of  the 
children  who  were  in  court;  and  of  the  expert  testimony 
of  a  person  styled  in  the  report  "  Dr.  Brown  of  Norwich^ 
a  person  of  great  knowledge."  This  was  no  other  than  Sir 
Thomas  Browne,  then  sixty  years  old,  and  a  physician  of 
much  distinction.  This  expert  was  by  no  means  uncom- 
mitted on  the  subject  of  witchcraft.  "  For  my  part,"  he 
had  said  twenty  years  before,  in  the  Religio  Medici,  a  book 
already  famous  and  in  its  seventh  edition,  "  I  have  ever 
believed  and  do  now  know  that  there  are  witches.  They 
that  doubt  of  this  do  not  only  deny  them,  but  spirits;  and 
are,  obliquely  and  upon  consequence,  a  sort,  not  of  infidels, 
but  atheists."  And  in  another  treatise,  published  only  two 
years  later  than  the  Religio  Medici,  in  dealing  with  Satan 

'  This  case  Is  found  in  the  State  Trials  and  elsewhere.  Stephen  gives 
a  short  account  of  It  In  his  History  of  the  Criminal  Law,  1.  378.  to 
which  I  am  indebted  for  some  references. 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL  331 

as  "  the  great  promoter  of  false  opinions,"  he  said,  in  that 
manner  of  his  which  carries  pleasure  to  the  marrow  of  a 
reader's  bones :  '"'  Lastly,  to  lead  us  further  into  darkness 
and  quite  to  lose  us  in  this  maze  of  error,  he  would  make 
men  believe  there  is  no  such  creature  as  himself,  .  .  . 
wherein,  besides  that  he  annihilates  the  blessed  angels  and 
spirits  in  the  rank  of  his  creation,  he  begets  a  security  of 
himself,  and  a  careless  eye  unto  the  last  remunerations. 
.  .  .  And  to  this  effect  he  maketh  men  believe  that  appari- 
tions and  such  as  confirm  his  existence  are  either  decep- 
tions of  sight  or  melancholy  depravements  of  fancy.  .  .  . 
Thus  he  endeavors  to  propagate  the  unbelief  of  witches, 
whose  concession  infers  his  coexistency;  by  this  means 
also  he  advanceth  the  opinion  of  total  death,  and  staggereth 
the  immortality  of  the  soul,"  etc. 

We  are  not  told  in  the  report  how  it  came  about  that 
"  Dr.  Brown  "  was  in  the  court-room,  whether  casually  or 
because  he  was  summoned  as  a  witness;  but  being  there, 
and  having  heard  the  evidence  and  seen  the  three  children 
in  court,  he  was  asked  by  Sir  Matthew  Hale  to  give  his 
opinion ;  and,  as  we  read  in  the  report,  "  he  was  clearly  of 
opinion  that  the  persons  were  bewitched,"  and  said  "  that 
in  Denmark  there  had  been  lately  a  great  discovery  of 
witches  who  used  the  very  same  way  of  afflicting  persons, 
by  conveying  pins  into  them,  and  crooked,  as  these  pins 
were,  with  needles  and  nails.  And  his  opinion  was,  that 
the  devil  in  such  cases  did  work  upon  the  bodies  of  men 
and  women  upon  a  natural  foundation,  (that  is),  to  stir 
up  and  excite  such  humours  superabounding  in  their  bodies 
to  a  great  excess,  whereby  he  did  in  an  extraordinary 
manner  afflict  them  with  such  distempers  as  their  bodies 
were  most  subject  to,  as  particularly  appeared  in  these 
children;  for  he  conceived  that  these  swooning  fits  were 
natural,  and  nothing  else  but  what  they  call  the  mother, 
but  only  heightened  to  a  great  excess  by  the  subtilty  of  the 
devil,  co-operating  with  the  malice  of  those  which  we  term 
witches,  at  whose  instance  he  doth  these  villanies." 


332  LEGAL  ESSAYS 

This  is  the  testimony  of  an  "  expert  witness,"  and  it 
could  not  but  have  had  a  great  effect.  For  although  it  was 
as  true  then  as  it  is  now  that  the  opinions  of  an  expert  are 
not  binding  upon  the  jury,  are  only  so  much  advice  and 
instruction  for  them,  educating  them  for  their  task  of  form- 
ing an  independent  opinion  of  their  own  (as  in  the  case  of 
Whistler  v.  Euskin),  yet  such  opinions,  in  matters  where 
the  jury  know  so  little  and  the  expert  knows  so  much,  are 
often  likely  to  be  acted  upon  as  if  they  were  authoritative. 
It  is  highly  probable  that  this  opinion  was  so  taken.  A 
few  carefully  put  questions  to  Sir  Thomas  Browne  might 
have  essentially  reduced  the  proportions  of  his  statement. 
How,  for  instance,  did  he  know  what  had  taken  place  in 
Denmark?  Personally,  he  probably  knew  nothing  about 
it,  for  the  accounts  of  his  life  do  not  indicate  that  he  had 
ever  travelled  there.  And  so,  in  a  degree,  as  regards  all 
the  witnesses ;  for  it  must  be  remembered  that,  at  that  time, 
on  a  trial  for  a  capital  offense,  as  this  of  witchcraft  was, 
the  accused  person  was  allowed  no  counsel  to  assist  him  in 
trying  his  case.  What  did  these  old  women,  frightened  out 
of  their  wits,  know  about  cross-examination  ?  At  that  time, 
it  may  be  added,  their  witnesses  could  not  be  sworn. 
Strange  as  it  may  seem,  it  was  not  for  a  generation  yet 
that  these  privileges  were  allowed  in  England  at  any  cap- 
ital trial ;  and  it  was  far  later  than  that  before  they  were 
allowed  in  all  of  them.  It  is  probable  that  many  thousands 
of  accused  persons  were  unjustly  hanged  in  England,  while 
this  state  of  things  existed,  whose  lives  would  have  been 
saved  by  a  moderately  skilful  cross-examination  of  the  gov- 
ernment witnesses. 

In  other  respects,  what  was  the  nature  of  the  legal  ma- 
chinery which  was  to  be  applied  to  the  solution  of  the 
strange  and  difficult  questions  that  were  brought  up  in 
these  proceedings  for  witchcraft?  They  were  to  be  settled 
by  the  verdict  of  a  jury,  —  instructed  by  evidence,  to  be 
sure,  and  advised  by  the  court,  but  having  at  that  time 
(unlike  the  present)  the  legal  right  to  find  a  verdict  on 


TRIAL  BY   JURY  OF  THINGS  SUPERNATURAL     333 

their  own  information  and  knowledge  only,  although  they 
had  not  publicly  stated  this  in  court  so  that  it  might  be 
sifted,  and  although  it  was  contradicted  by  all  the  evidence 
in  the  case.  While  the  jury  had  this  great  and  unmanage- 
al)le  power,  their  verdict  was  practically  uncontrollable: 
he  whom  they  acquitted  v/as  finally  acquitted,  and  he  whom 
they  found  guilty  was  guilty  once  for  all,  saving  only  the 
judges'  power  of  delaying  execution  and  the  king's  pardon- 
ing power.  Points  of  law  might  be  taken,  but  there  was 
then  no  way  of  reviewing  or  setting  aside  the  verdict,  in  a 
criminal  case  for  an  error  in  finding  the  fact.  The  judges 
were  then  in  the  latter  days  of  an  experiment  at  fining  and 
punishing  jurors  for  acquitting  improperly,  but  that  soon 
got  its  death-blow,  and  the  modern  practice  of  granting 
new  trials  was  just  beginning. 

Who  and  what  were  the  jury?  A  body  of  plain,  every- 
day men,  having  some  little  qualification  of  property,  and 
challengeable  for  a  few  of  the  plainer  disqualifications  for 
fair  dealing,  as,  for  example,  that  they  were  in  the  employ- 
ment of  either  party,  —  a  good  representation,  no  doubt, 
of  the  average  fairly  well-to-do  citizen,  filled  full  of  all  the 
ordinary  prejudices,  presuppositions,  ignorance,  supersti- 
tion, of  the  times.  The  jur}%  as  Sir  Henry  Maine  has  said, 
is  but  "  a  relic  of  the  ancient  popular  justice,  .  .  .  the  old 
adjudicating  democracy,  limited,  modified,  and  improved  in 
accordance  with  the  principles  suggested  by  the  experience 
of  centuries."  We  can  get  a  side-light  on  the  jury  of  that 
period,  and  their  feeling  about  this  class  of  cases  at  just 
about  this  time,  from  Eoger  North's  life  of  his  brother 
Francis,  the  Ijord-Keeper  Guilford.  Francis  North  be- 
came chief  justice  of  the  Common  Pleas  in  1675,  while 
Sir  Matthew  Hale  was  yet  sitting  as  chief  justice  of  the 
King's  Bench.  He  was  a  good  lawyer  and  a  man  of  the 
world.  "  Sharp  and  shrewd,"  says  one  of  his  biographers 
(Lord  Campbell,  Lives  of  the  Chancellors,  iv.  333),  ''but 
of  no  imagination,  of  no  depth,  of  no  grasp  of  intellect,  — 
any  more  than  generosity  of  sentiment,"    But  he  did  have 


334  LEGAL  ESSAYS 

a  certain  hard  sense  that  kept  him  free  from  the  delusions 
that  affected  that  much  greater  but  over-religious  man, 
Sir  Matthew  Hale.  Eoger  North,  in  the  affectionate  and 
most  readable  life  of  his  brother  to  which  I  have  referred, 
and  which  Talfourd  has  called  "  one  of  the  most  delightful 
books  in  the  world,"  says  that  his  brother  was  extremely 
"  scrutinous,"  as  he  calls  it,  in  criminal  cases  when  they 
were  at  all  obscure,  especially  when  they  were  capital  cases ; 
"  but  never  more  puzzled,"  he  goes  on,  "  than  when  a  pop- 
ular cry  was  at  the  heels  of  a  business ;  for  then  he  had  his 
jury  to  deal  with,  and  if  he  did  not  tread  upon  eggs  they 
would  conclude  sinistrously,  and  be  apt  to  find  against  his 
opinion.  And  for  this  reason  he  dreaded  the  trying  of  a 
witch.  It  is  seldom  that  a  poor  old  M-retch  is  brought  to 
trial  upon  that  account  but  there  is,  at  the  heels  of  her,  a 
popular  rage  that  docs  little  less  than  demand  her  to  be 
put  to  death;  and  if  a  judge  is  so  clear  and  open  as  to 
declare  against  that  impious,  vulgar  opinion  that  the  devil 
himself  has  power  to  torment  and  kill  innocent  children, 
or  that  he  is  pleased  to  divert  himself  with  the  good  people's 
cheese,  butter,  pigs,  and  geese,  and  the  like  errors  of  the 
ignorant  and  foolish  rabble,  the  countrymen  (the  triers) 
cry,  this  judge  hath  no  religion,  for  he  doth  not  believe 
witches;  and  so,  to  show  they  have  some,  hang  the  poor 
wretches.  All  which  tendency  to  mistake  requires  a  very 
prudent  and  moderate  carriage  in  a  judge,  whereby  to  con- 
vince rather  by  detectitig  of  the  fraud  than  by  denying 
authoritatively  such  power  to  be  given  to  old  women." 

Francis  North  had  been  made  the  more  thoughtful  upon 
this  subject  on  account  of  the  conviction  of  two  old  women 
before  one  of  his  colleagues  upon  trivial  evidence,  rein- 
forced by  their  confessions.  "  This  judge,"  says  Roger 
North,  "left  the  point  upon  the  evidence  fairly  (as  they 
call  it)  to  the  jury,  but  he  made  no  nice  distinctions,  as 
how  possible  it  was  for  old  women  in  a  sort  of  melancholy 
madness,  by  often  thinking  in  pain  and  want  of  spirits,  to 
contract  an  opinion  of  themselves  that  was  false;  and  that 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL     335 

this  confession  ought  not  to  be  taken  against  themselves, 
without  a  plain  evidence  that  it  was  rational  and  sensible, 
no  more  than  that  of  a  lunatic  or  distracted  person." 

Koger  North  had  himself  been  present  when  his  brother 
had  to  try  an  old  man  for  bewitching  a  girl  of  thirteen. 
The  girl  had  shown  the  usual  symptoms  of  strange  fits 
when  the  man  came  near  her,  and  of  spitting  out  pins. 
But  these  pins,  unlike  the  common  case,  were  straight,  and 
his  lordship,  we  are  told,  "wondered  at  the  straight  pins, 
which  could  not  be  so  well  couched  in  the  mouth  as  crooked 
ones;  for  such  only  used  to  be  spit  out  by  the  people  be- 
witched. He  examined  the  witnesses  very  tenderly  and 
carefully,  and  so  as  none  could  collect  what  his  opinion 
was;  for  he  was  fearful  of  the  jurymen's  precipitancy,  if 
he  gave  them  any  offence."  The  old  man  defended  himself 
well  (without  counsel,  of  course),  and  called  his  witnesses, 
who  could  not  (as  I  have  said)  be  sworn.  "  After  this  was 
done,"  goes  on  the  biographer,  "  the  judge  was  not  satis- 
fied to  direct  the  jury  before  the  imposture  was  fully 
declared,  but  studied  and  beat  the  bush  awhile,  asking 
sometimes  one  person,  and  then  another,  questions  as  he 
thought  proper.  At  length  he  turned  to  the  justice  of  the 
peace  that  committed  the  man  and  took  the  first  examina- 
tions, and,  '  Sir,'  said  he,  '  pray  will  you  ingenuously  declare 
your  thoughts,  if  you  have  any,  touching  these  straight  pins 
which  the  girl  spit?  for  you  saw  her  in  her  fit.'  Then,  '  My 
lord,'  said  he,  '  I  did  not  know  that  I  might  concern  my- 
self in  the  evidence,  having  taken  the  examination  and 
committed  the  man.  But  since  your  lordship  demands  it, 
I  must  needs  say  I  think  the  girl,  doubling  herself  in  her 
fit,  as  being  convulsed,  bent  her  head  down  close  to  her 
stomacher,  and  with  her  mouth  took  pins  out  of  the  edge 
of  that,  and  then,  righting  herself  a  little,  spit  them  into 
some  bystander's  hands.'  This,"  adds  the  biographer,  "  cast 
an  universal  satisfaction  upon  the  minds  of  the  whole  audi- 
ence, and  the  man  was  acquitted." 

Now  Hale,  in  dealing  with  his  jury,  gave  them  no  such 


336  LEGAL  ESSAYS 

quiet  exhibition  of  his  anxiety  and  his  doubts;  he  took  a 
very  different  method,  and  one  which  is  exactly  indicated 
by  Eoger  North's  slurring  expression  as  to  his  brother's 
colleague,  Raymond,  — "  whose  passive  behavior,"  as  he 
said,  "  should  let  those  poor  women  die,"  —  namely,  "  he 
left  the  point  .  .  .  fairly  (as  they  call  it)  to  the  jury." 
Hale  had  done  just  this,  and  in  a  manner  which  indicated 
his  own  unwillingness  to  interfere  with  the  natural  move- 
ments of  the  jurors'  minds,  whose  tendencies  on  such  a 
question,  of  course,  he  must  well  have  known.  "  He  would 
not,"  he  said,  in  charging  the  jury,  ''  repeat  the  evidence 
to  them,  lest  he  should  vary  it  one  side  or  the  other.  They 
had  two  things  to  ask :  AVere  the  children  bewitched  ?  Were 
the  prisoners  guilty  of  it?  That  there  were  such  creatures 
as  witches  he  made  no  doubt  at  all ;  the  Scriptures  and  the 
laws  of  all  nations,  including  England,  showed  that.  And 
he  desired  them  strictly  to  observe  this  evidence,  and  the 
great  God  of  heaven  to  direct  their  hearts  in  this  weighty 
thing.  For  to  condemn  the  innocent  and  to  let  the  guilty 
go  free  were  both  an  abomination  to  the  Lord."  There- 
upon the  jury  went  out,  and  in  half  an  hour  found  the 
women  guilty  on  thirteen  charges.  This  was  on  Thursday 
afternoon,  March  13,  1664-5. 

Now  what  was  this  evidence  which  Chief  Baron  Hale 
was  content  to  leave  to  the  jury  with  so  little  remark,  and 
with  no  criticism  whatever?  Our  source  of  information 
for  this  is  an  account  printed  certainly  as  early  as  1682, 
and  perhaps,  as  there  is  some  reason  for  thinking,  in  Hale's 
own  lifetime,  —  an  account  prepared  with  care  by  one  who 
was  present  at  the  trial.  It  bears  plain  marks  of  an  effort 
to  vindicate  the  justice  of  the  proceeding. 

There  were,  as  I  said,  seven  children  supposed  to  be 
bewitched:  of  these,  one  had  died  before  the  trial;  of  the 
others,  not  one  actually  testified  in  court;  three  were  re- 
ported as  sick,  and  the  other  three  who  came  to  court  were 
conveniently  bewitched  at  this  time  and  made  dumb.  But 
these  three  did  go  through  many  manifestations  before  the 


TRIAL  BY  JURY   OF  THINGS  SUPERNATURAL      337 

court,  which  must  have  strongly  impressed  any  jury  of 
plain  men  whose  minds  were  preoccupied  with  a  belief  in 
witchcraft.  One  of  the  children  was  a  girl  of  eleven,  who 
lay  on  a  table  in  the  court-room,  on  her  back,  as  one  in  a 
deep  sleep,  unable  to  move  any  part  of  her  body,  except  (a 
common  symptom  in  witch  cases)  that  her  stomach,  "by 
the  drawing  of  her  breath,  would  arise  to  a  great  height." 
Then  she  recovered  herself  and  sat  up,  but  could  neither 
see  nor  speak,  though  able  to  understand  what  was  said  to 
her ;  and  then  "  she  laid  her  head  on  the  bar  of  the  court 
with  a  cushion  under  it."  The  judge  directed  one  of  the 
alleged  witches  to  come  near  and  touch  the  girl,  "where- 
upon," we  read,  "  the  child,  without  so  much  as  seeing  her, 
for  her  eyes  were  closed  all  the  while,  suddenly  leaped  up 
and  catched  Amy  Duny  (the  old  woman)  by  the  head  and 
afterwards  by  the  face,  and  with  her  nails  scratched  her 
till  the  blood  came,  and  would  by  no  means  leave  her  till 
she  was  taken  from  her;  and  afterwards  the  child  would 
still  be  pressing  towards  her  and  making  signs  of  anger 
conceived  against  her."  Another  girl  of  eighteen  "  fell  into 
her  fits  "  on  being  brought  into  court,  and  was  carried  out ; 
in  half  an  hour  she  recovered,  and  came  back  and  was 
sworn,  but  as  she  undertook  to  testify  "  she  fell  into  her 
fits,  shrieking  out  in  a  miserable  manner,  crying,  burn  her, 
burn  her,  which  were  all  the  words  she  could  speak."  Ee- 
peated  experiments  were  made  in  court  of  the  touching  of 
the  children,  while  appearing  to  be  insensible,  by  the  old 
women,  and  of  their  starting  up  into  activity.  Now,  says 
the  reporter,  "  there  was  an  ingenious  person  who  objected 
that  there  was  here  a  great  fallacy  in  this  experiment,"  for 
the  children  might  be  shamming.  Whereupon  the  judge 
(who  was  always  fair)  had  an  experiment  tried  that  well- 
nigh  upset  the  whole  business.  Three  persons  of  considera- 
tion, including  Serjeant  Keeling,  were  desired  by  the  court 
to  attend  one  of  the  children,  in  the  further  part  of  the  hall, 
while  she  was  in  one  of  her  fits,  and  then  send  for  one  of 
the  old  women.    This  was  done.     The  girl's  apron  was  put 

22 


338  LEGAL   ESSAYS 

over  her  eyes,  and  a  person  who  was  not  one  of  the  witches 
touched  the  girl's  hand,  which  produced  the  same  effect  as 
the  touch  of  the  old  women  themselves.  "  Whereupon," 
goes  on  the  report,  "  the  gentlemen  returned,  openly  pro- 
testing that  they  did  believe  the  whole  transaction  of  this 
business  was  a  mere  imposture.  This  put  the  court  and 
all  persons  into  a  stand."  But  at  length  Mr.  Pacy,  the 
father  of  the  eleven-year-old  girl,  made  a  naive  suggestion 
that  seems  to  have  been  thought  a  valuable  one,  namely, 
he  "  did  declare  that  possibly  the  maid  might  be  deceived  by 
a  suspicion  that  the  witch  touched  her  when  she  did  not " ; 
and  the  reporter,  with  an  amusing  credulity,  says  this  was 
afterwards  found  to  be  true,  so  that  "  by  the  opinions  of 
some  this  experiment  (which  others  would  have  a  fallacy) 
was  rather  a  confirmation  that  the  parties  were  really  be- 
witched than  otherwise." 

One  readily  guesses  that  these  dramatic  incidents  must 
have  told  strongly  on  the  feelings  of  any  plain  and  ordi- 
narily kind-hearted  jury.  Some  of  the  children  were  prob- 
ably in  a  state  of  real  hysteria;  and  the  scene  was  height- 
ened by  all  the  fear  and  sorrow  which  their  distressed 
mothers  and  relatives  felt  in  telling  these  things,  and  in 
telling  how  one  child  had  been  already  killed  by  these  tor- 
ments, and  others  were  now  languishing  at  home,  at  the 
point  of  death,  from  the  same  cause. 

The  other  testimony,  which  a  lawyer  of  the  present  day 
reads  with  amazement,  was  calculated  to  have  much  effect 
on  the  jury.  It  was,  in  substance,  this :  As  to  two  of  the 
children,  their  mother  gave  an  account  of  a  quarrel  which 
she  herself  had  had  with  one  of  the  old  women  some  years 
before.  The  woman  had  had  the  reputation  of  being  a 
witch  for  several  years.  As  soon  as  this  quarrel  came,  the 
witness's  little  nursing  boy  was  very  sick  for  several  weeks. 
She  consulted  a  doctor  who  was  reckoned  good  at  helping 
bewitched  children,  and  was  advised  by  him  to  hang  up 
the  child's  blanket  by  the  fire  all  day,  and  when  she  took  it 
down  at  night  to  burn  anything  that  she  found  in  it.    She 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL     339 

did  hang  it  up,  and  at  night  found  in  the  blanket  a  great 
toad,  which  she  caused  to  be  held  in  the  fire  with  the  tongs ; 
then  followed  (as  the  reader  will  anticipate)  "  a  great  and 
horrible  noise,"  "  a  flashing  in  the  fire  like  gun-powder," 
"  a  noise  like  the  discharge  of  a  pistol,  and  thereupon  the 
toad  was  no  more  seen  nor  heard."  The  child  recovered, 
but  the  old  woman  (the  witch)  was  found,  on  the  next 
day,  to  be  herself  terribly  burned,  and  she  charged  this  on 
the  witness,  and  threatened  her.^  About  two  years  later,  the 
witness's  daughter,  ten  years  old,  was  taken  in  much  the 
same  way,  and  in  her  fits  charged  this  old  woman  with 
afflicting  her,  and  soon  died;  and,  moreover,  the  witness 
herself  became  lame,  and  ever  since,  for  more  than  three 
years,  had  gone  on  crutches. 

As  to  two  more  of  the  children,  eleven  and  nine  years 
old,  their  father  testified  to  a  quarrel  with  one  of  the  old 
women;  and  that  the  younger  daughter  immediately  fell 
into  fits,  had  the  pricking  of  pins  in  her  stomach,  and 
shrieked  out  like  a  whelp,  and  continued  in  this  condition 
nearly  a  fortnight,  charging  the  old  woman  with  afflicting 
her.  He  caused  the  woman  to  be  put  in  the  stocks,  where- 
upon the  other  daughter  fell  sick  in  the  same  way.  Their 
aunt  testified  that  they  were  then  sent  to  be  under  her  care ; 
that  she  had  at  first  no  faith  in  the  stories,  and  thought 
that  the  children  were  deceiving ;  but  they  went  on  to  throw 
up  crooked  pins  and  sometimes  nails,  although  she  took 
care  that  no  pins  were  used  in  their  clothes;   and  a  large 

'  As  regards  this  experiment  with  the  toad,  it  is  singular  how  the 
human  fancy  holds  on  to  such  conceptions.  A  near  relative  of  mine, 
who  lived  in  Andover  eighty  years  ago,  has  told  me  that  she  went  to 
school  there,  as  a  very  young  child,  to  an  old  woman  who  was  generally 
believed  to  be  a  witch.  On  a  neighboring  farm,  one  day,  the  churning 
did  n't  work  right,  and  the  failure  of  the  butter  to  come  was  attributed 
to  the  machinations  of  this  old  woman.  The  butter-makers  resorted  to 
the  usual  way  of  exorcising  the  evil  influence  by  heating  the  spit  and 
thrusting  it  red-hot  into  the  cream.  It  turned  out  that  the  old  woman 
at  once  appeared  with  a  burned  hand  ;  and  this  was  widely  received  as 
conclusive  evidence  that  she  was  a  witch.  This  was  in  the  nineteenth 
century.  Of  this  old  woman,  as  of  Moll  Pitcher  of  Lynn,  who  was 
known  to  my  friend,  I  was  told  that  she  did  not  discourage  this  opinion, 
for  it  was  worth  something  to  her  in  the  gainful  occupation  of  fortune- 
telling. 


340  LEGAL  ESSAYS 

quantity  of  these  pins,  and  also  nails  from  the  same  quarter, 
were  produced  to  the  jury.  The  doctor  who  attended  one 
of  the  children  testified  to  his  inability  to  account  for  the 
cause  of  their  disorder.  Similar  stories  were  told  of  the 
other  children.  And  finally,  by  way  of  confirming  the 
idea  that  all  this  sort  of  thing  was  traceable  to  the  old 
women,  a  man  testified  to  his  wagon  having  once  struck 
and  injured  the  house  of  one  of  the  women,  whereupon  the 
cart  was  afterwards  upset,  and  also  stuck  unaccountably  in 
a  gate,  and  the  like.  Another  man,  having  touched  her 
house  with  his  axle,  had  four  horses  die  soon  afterwards, 
and  also  cattle  and  pigs ;  and  himself  grew  lame  in  his  legs 
and  was  troubled  with  lice.  A  woman,  having  been  threat- 
ened by  one  of  the  old  women,  afterwards  lost  all  her  geese 
and  had  a  new  chimney  fall,  and  also  lost  a  firkin  of  fish 
which  her  brother  had  sent  her  from  the  "  northern  seas  " ; 
as  to  the  firkin,  the  unfortunate  mariners  who  were  to  have 
delivered  it  to  her  told  her  "  they  could  not  keep  it  in  the 
boat  from  falling  into  the  sea,  and  they  thought  it  was  gone 
to  the  devil,  for  they  never  saw  the  like  before."  An  exam- 
ination of  the  persons  of  the  alleged  witches  was  also  had 
by  some  women  appointed  by  the  court,  and  they  reported 
certain  appearances  which  were  in  those  days  considered 
marks  of  a  witch. 

This,  with  the  expert  testimony  of  Sir  Thomas  Browne, 
was,  so  far  as  we  can  tell,  all  of  the  evidence.  Think  of 
Sir  Matthew  Hale  leaving  all  that  rubbish  to  the  jury! 
What  is  even  worse,  think  of  his  doing  it  with  nothing  to 
mark  any  just  appreciation  of  its  character!  That  Hale 
himself  really  believed  the  evidence  and  approved  the  jury's 
action  is  shown  by  the  fact  that  he  sentenced  the  women 
at  once,  on  the  next  morning.  He  might  have  delayed,  and 
have  respited  them;  that  was  very  common  with  the  Eng- 
lish judges  when  there  was  any  doubt.  But  here  the  con- 
viction came  in  the  afternoon ;  and  Hale,  after  having  the 
three  children  and  their  parents  at  his  lodgings  the  next 
morning,  where  he  found,  as  the  reporter  tells  us,  that 


TRIAL   BY  JURY  OF  THINGS  SUPERNATURAL     341 

within  half  an  hour  after  the  conviction  the  chiklren  had 
all  recovered,  that  they  had  slept  well,  that  they  now  spoke 
perfectly  and  were  in  good  health,  proceeded  forthwith  to 
the  final  step.  He  must  also  have  learned  that  morning 
of  the  alleged  circumstance  that  the  mother,  who  had  been 
for  more  than  three  years  on  crutches,  and  had  testified 
on  them  in  court,  was,  upon  the  jury's  verdict,  "  restored 
to  the  use  of  her  limbs,"  and  went  for  the  first  time  with- 
out her  crutches.  Hale  had  two  of  the  children  come  into 
court  and  confirm  all  that  had  been  testified  by  their 
friends ;  "  the  prisoners,"  says  the  reporter,  "  not  much 
contradicting  them."  And  then,  ''  the  Judge  and  all  the 
court  (being)  fully  satisfied  with  the  verdict,  gave  judg- 
ment against  the  witches  that  tliey  should  be  hanged." 
They  were  urged  to  confess,  but  would  not;  and  in  three 
days  they  were  executed. 

II.  I  pass  at  once  to  the  Scotch  case.  This  case  is  re- 
markable for  preserving  the  principal  arguments  of  the 
prosecuting  counsel,  both  to  the  court  and  jury;  so  that 
we  may  see  just  what  the  line  of  reasoning  was  by  which 
a  tribunal  might  be  persuaded  of  these  things.  It  brings 
strongly  to  light  the  way  in  which  the  security  afforded  by 
legal  forms  and  solemnities  for  the  accurate  investigation 
of  facts  may  wholly  break  down  when  the  men  who  are  to 
do  the  judging  have  their  minds  saturated  with  certain 
sorts  of  opinion.  We  should  be  very  foolish  if  we  supposed 
that  we  are  wholly  rid  of  this  sort  of  difficulty  at  the  pres- 
ent day.  It  is  familiar  to  us  in  some  of  its  plainer  forms. 
The  most  conspicuous  illustration  of  it  in  our  own  time  is 
the  outcome  of  the  electoral  commission  for  determining 
who  had  been  chosen  President  in  1876.  On  a  set  of 
questions  which  divided  the  commission,  as  they  divided 
the  country,  sharply  on  political  lines,  we  tried  to  make 
the  commission  judges.  Most  of  its  members,  no  doubt, 
approached  the  questions  with  a  patriotic  purpose  to  be 
perfectly  impartial,  perfectly  judicial.  They  listened  to 
arguments  on  both  sides,  and  deliberated  and  gave  their 


342  LEGAL  ESSAYS 

opinions ;  and  they  were  divided,  eight  to  seven,  —  pre- 
cisely on  party  lines;  and  this  not  merely  on  one  or  two 
of  the  questions,  but  on  every  question  of  importance.  In 
the  journal  of  the  commission  one  may  read  thirty-four 
divisions  of  eight  to  seven,  almost  every  one  that  is  recorded. 
Some  persons  blamed  them.  But  whom  would  you  blame? 
I  believe  it  is  common  for  those  who  lost  to  blame  all  of 
those  on  the  opposite  side,  as  having  been  partisans.  But 
of  course  it  must  not  be  overlooked  that  the  minority  showed 
precisely  the  same  solidarity.  The  fact  is  that  the  human 
creature,  do  what  he  will,  cannot  rid  his  mind  of  precon- 
ceptions; and  I  suppose  that  we  ought  to  thank  God  that 
it  is  so,  that  we  cannot  make  ourselves  into  mere  thinking 
machines.  At  any  rate,  so  the  fact  is ;  these  judicial  treas- 
ures we  have  in  earthen  vessels. 

The  Scotch  case  came  on  thirty  years  or  more  after  the 
trial  of  the  Suffolk  Witches,  near  Glasgow.  It  arose  in 
1696,  a  few  years  after  our  Salem  trials.  It  derives  a  cer- 
tain interest  from  the  fact  that  the  bewitched  person,  a 
girl  of  eleven,  Christian  Shaw,  afterwards,  with  her  mother, 
began  at  Paisley  that  manufacture  of  thread  which  has  since 
made  the  place  famous  the  world  over.  Her  father  was  the 
Laird  of  Bargarran,  in  Eenfrewshire,  a  little  way  out  of 
Paisley.  Christian  had  caught  a  servant,  Katherine  Camp- 
bell, stealing  some  milk  on  a  Monday  in  August,  and  re- 
ceived a  vigorous  cursing  for  it;  thrice  the  servant  wished 
that  the  devil  might  "  harle  her  soul  through  hell.''  On 
the  next  Friday,  Agnes  Naesmith,  an  old  widow  and  a 
reputed  witch,  was  in  the  laird's  courtyard ;  the  girl.  Chris- 
tian Shaw,  gave  her  a  saucy  answer  to  some  question,  and 
the  old  woman  appears  to  have  shown  resentment.  On  the 
next  evening,  Saturday,  strange  manifestations  began  with 
Christian  Shaw,  which  continued  for  months.  She  flew 
over  her  bed,  lay  insensible  for  days,  stood  bent  like  a  bow 
upon  her  feet  and  neck  at  once,  "  fell  a-crying "  that 
Katherine  Campbell  and  Agnes  Naesmith  were  hurting  her, 
etc.     She  was  taken  to   Glasgow  to   see  a  distinguished 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL     343 

physician,  Dr.  Brisbane.  Here  her  health  grew  better. 
She  had  an  intermission  of  nearly  a  fortnight.  She  went 
home  again,  and  her  symptoms  came  back  worse  than  ever; 
her  head  was  pulled  down  towards  her  breast,  and  her 
tongue  violently  thrown  out  and  squeezed  between  her  teeth, 
especially  when  she  undertook  to  pray.  They  took  lier  back 
to  Dr.  Brisbane  at  Glasgow ;  and  now,  even  on  the  journey 
thither,  she  developed  a  new  thing,  —  the  spitting  out  of 
hairs,  curled  and  knotted,  of  coal  cinders  as  big  as  chest- 
nuts and  almost  too  hot  to  handle,  straw,  pins,  small  bones, 
pieces  of  wood,  feathers,  gravel-stones,  candle-grease,  and 
egg-shells.  She  was  visited  by  great  numbers  of  people  in 
Glasgow,  and  by  many  of  distinction.  She  sat  up  in  bed, 
unable  to  see  or  hear,  and  called  for  a  Bible  and  a  candle, 
and  preached  to  the  invisible  Katherine  Campbell  for  two 
hours.  And  now  she  began  to  accuse  others,  and  to  see  the 
devil  himself.  The  clergy  took  it  up;  she  became  the 
object  of  constant  observation  and  labor  with  the  credulous 
Presbytery  of  Paisley.  She  saw  a  good  many  witches,  and 
was  much  beset  by  them  and  by  the  devil,  particularly  when 
any  religious  exercise  was  on.  "  Usually,"  we  are  told  in 
the  naive  story  of  all  this,  printed  within  a  3^ear  or  so,  in 
1698,  "  when  ministers  began  to  pray  slie  made  great  dis- 
turbance by  idle,  loud  talking,  whistling,  singing,  and  roar- 
ing; and  when  she  recovered  she  laid  this  off  on  the  hellish 
crew  about  her."  Xow  people  would  hear  sounds  as  of 
strokes,  and  she  complained  that  various  people  were  strik- 
ing and  tormenting  her,  and  urging  her  to  kill  her  young 
sister.  She  went  on  to  name  more  people,  and  was  tor- 
mented when  they  touched  her,  among  them  an  old  High- 
lander who  had  come  along  and  asked  a  night's  lodging; 
his  touch  tormented  her,  and  he  was  arrested.  The  next 
day,  a  clergyman  tried  the  experiment  of  covering  her  with 
his  cloak,  and  bringing  her  in  and  letting  the  Highlander 
touch  her.  He  did  so,  and  she  was  at  once  tormented. 
Then  she  begged  the  Highlander  to  let  her  tell  their  secrets, 
upon   which,   says   the  simple   narrative,   "  the   old   fellow 


344  LEGAL   ESSAYS 

looking  at  her  with  an  angry  countenance,"  her  mouth  was 
stopped  and  her  teeth  set.  Early  in  February,  1696-7, 
came  a  meeting  of  a  commission  of  distinguished  persons 
appointed  by  the  Privy  Council  of  Scotland  to  examine  and 
report  upon  this  whole  case.  Christian  Shaw  accused  vari- 
ous persons,  and  was  touched  by  them  in  public  and  duly 
tormented.  Then  came  confessions.  One  person  charged 
by  Christian  was  a  beggar,  described  as  "  an  ignorant, 
irreligious  fellow  who  had  always  been  of  evil  fame"; 
another  was  his  daughter  of  seventeen,  who,  after  being,  as 
the  narrative  says,  "  seriously  importuned  and  dealt  with 
by  two  gentlemen,"  confessed  and  implicated  her  father 
and  the  old  Highlander.  A  boy  under  twelve  was  arrested, 
and  although  at  first  he  vigorously  denied  any  guilt,  he 
confessed  and  implicated  his  brother,  aged  fourteen,  —  now 
in  jail  at  Glasgow,  and  about  to  be  transported  for  some- 
thing else.  This  boy  also,  at  first,  wholly  denied  the  busi- 
ness, "  yet,"  says  the  narrative,  "  at  length,  through  the 
endeavors  of  Mr.  Patrick  Simpson,  a  neighbor  minister, 
ingeniously  confessed  his  guilt." 

On  February  11  there  was  a  public  fast,  and  Christian 
was  present  in  church  all  day,  —  listening  to  three  sermons ; 
certainly  a  good  day's  work.  That  evening  she  had  a  sharp 
attack ;  "  and  when  the  fit  was  over,"  we  read  that  she  had 
to  hear  another  discourse.  "  Mr.  Simpson,  going  about 
family  worship,  did  expound  Psalm  ex.,  and  speaking  of 
the  limited  power  of  the  adversaries  of  our  Lord  Jesus 
Christ,  from  the  latter  part  of  verse  1,  she  was  on  a  sud- 
den seized  with  another  grevious  (sic)  fit,  in  which  she  put 
out  of  her  mouth  some  blood,  which  raised  grounds  of  fear 
and  jealousy  in  the  minds  of  spectators  that  something  in 
her  mouth,  hurting  her,  had  been  the  occasion  of  it;  yet 
they  could  not  get  her  mouth  opened,  though  they  used 
means  to  open  the  same,  her  teeth  being  close  set.  And 
in  the  interval  of  the  fit,  she  being  asked  if  she  found  any- 
thing in  her  mouth  that  had  been  the  occasion  of  her  putting 
out  of  blood,  she  replied  she  found  nothing,  nor  knew  the 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL     345 

cause  thereof ;  but  opening  her  mouth,  those  present  found 
one  of  her  double  teeth  newly  drawn  out,  but  knew  not 
what  became  of  the  tooth;  for  though  search  was  made 
for  the  same,  it  could  not  be  found.  After  which,"  we  are 
told,  "  the  minister  proceeded  (with  his  discourse),  but  was 
again  interrupted  by  her  renewed  fits,  yet  closed  the  exer- 
cise with  prayer,  after  which,  without  more  trouble,  she 
was  taken  to  her  bed." 

She  went  on  in  this  way  accusing  more  people,  a  mid- 
wife and  others,  up  to  a  certain  Sunday  morning  near  the 
end  of  March,  when  it  all  stopped.  It  appears  to  have 
been  about  this  time  that  the  final  report  Avas  made  by  the 
commissioners  to  the  Privy  Council  of  the  doings  of  the 
witches.  In  eight  days  a  new  commission  was  appointed, 
"  not  merely  to  examine,  but  now  actually  to  try  the  accused 
persons,  and  sentence  the  guilty  to  be  burned  or  otherwise 
executed  to  death,  as  the  commissioners  should  incline." 
The  commission  met,  heard  a  sermon  by  Mr.  Hutchinson 
on  the  stimulating  text,  "  Thou  shalt  not  suffer  a  witch  to 
live,"  and  in  a  day  or  two  adjourned  for  a  month.  Three 
confessions  had  been  heretofore  obtained,  and  it  was  desired 
that  the  clergy  should  try  in  this  interval  to  get  more  of 
them.  This  seems  to  have  been  regarded  as  very  impor- 
tant ;  and  they  succeeded  in  getting  two  more  on  the  morn- 
ing that  the  commission  met.  It  is  strange  that  neither  of 
these  two  "  confessants  "  appears  to  have  been  put  on  trial. 
Twenty-four  persons  had  been  accused.  Seven  of  them 
were  tried  before  a  jury,  and  all  convicted.  After  convic- 
tion one  confessed,  and  committed  suicide  in  prison  the 
same  night.  The  other  six,  including  Katherine  Campbell 
and  Agnes  Naesmith,  and  at  least  two  of  the  earlier  "  con- 
fessants," were  burned  at  Paisley  on  June  10,  1697. 

Now,  although  I  have  been  drawn  into  this  long  narra- 
tive, my  chief  concern  is  with  the  arguments  and  the  trial. 
We  have  no  full  report :  it  appears, -however,  that  they  had 
the  testimony  of  Dr.  Brisbane,  the  Glasgow  physician  and 
expert,  of  Christian  Shaw  herself,  now  restored  and  in  her 


346  LEGAL  ESSAYS 

right  mind,  of  the  five  surviving  "  confessants,"  and  of 
many  others.  The  accused  had  an  advocate,  and  in  this 
•they  were  more  fortunate  than  a  witch  tried  in  England 
would  have  been  at  that  time. 

Observe,  then,  that  this  Scotch  case  is  very  different  from 
that  of  the  Suffolk  Witches,  in  that  the  person  bewitched 
testified  here,  and  that  five  of  the  alleged  witches  also  testi- 
fied. In  this  way  there  was  brought  into  the  case  a  body 
of  what  was  called  "  spectral  evidence,"  which  Sir  Matthew 
Hale  did  not  have  to  deal  with.  All  of  the  "  confessants  " 
testified  that  they  had  personally  seen  the  devil  in  one  or 
another  shape,  and  had  been  carried  through  the  air  in 
"  flights  " ;  they  had  met  with  the  devil  and  companies  of 
witches,  being  all  invisible,  and  had  appeared  to  Christian 
Shaw  while  unseen  to  everybody  else,  and  put  pins  and  hair, 
cinders,  and  the  like  into  her  mouth,  and  had,  while  invis- 
ible, by  upsetting  boats  and  otherwise,  assisted  in  several 
murders. 

The  testimony  of  the  expert,  Dr.  Brisbane,  was  of  course 
important.  It  was  much  cooler  than  that  of  Sir  Thomas 
Browne  in  the  case  of  the  Suffolk  Witches.  He  adhered, 
at  the  trial,  to  a  deposition  which  he  had  previously  given, 
in  which  he  had  said  that  he  found  Christian  Shaw,  on  her 
first  coming,  ^'  brisk,"  "  florid  in  color,"  "  cheerful,"  and 
"  every  way  apparently  healthful,"  and  that  he  saw  nothing 
in  what  took  place  during  her  first  visit  to  him  —  the  con- 
vulsive motions  and  groans  and  talk  against  Campbell  and 
Naesmith  —  which  was  not  "  reducible  to  the  freaks  of 
hypochondriac  melancholy  " ;  and  at  that  time  he  treated 
her  accordingly,  with  advantage.  But  what  he  could  not  ex- 
plain was  what  happened  afterwards.  He  was  often  with 
her,  he  said,  and  "observed  her  narrowly,  so  that  he  was 
confident  she  had  no  visible  correspondent  to  supply  hair, 
straw,  coal  cinders,  hay,  and  the  like,  all  of  which  on  several 
occasions  he  saw  her  put  out  of  her  mouth  without  being 
wet;  nay,  rather  as  if  artificially  dried,  and  hotter  than 
the  natural  warmth  of  her  body.  .  .  .  Were  it  not  for  the 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL  347 

hay,  straw,  etc.,  he  should  not  despair  to  reduce  the  other 
symptoms  to  their  proper  classes  in  the  catalogue  of  human 
diseases."  At  the  trial,  referring  to  these  previous  state- 
ments, the  doctor  declared  that  in  his  opinion  these  things 
"  did  not  proceed  from  natural  causes  arising  from  the 
patient's  body."  Now  as  regards  this  testimony  by  Dr. 
Brisbane,  one  observes  no  statement  at  all  that  he  had  at 
any  time  had  the  girl  searched.  There  is  also  no  statement, 
like  Sir  Thomas  Browne's,  that  he  himself  believed  in  witch- 
craft or  thought  these  strange  occurrences  traceable  to  that ; 
and  none  that  he  absolved  the  girl  from  cheating.  It  is, 
as  we  have  it,  only  a  guarded  declaration  that  these  things 
are  not  imputable,  in  his  opinion,  to  any  bodily  disease. 
If  this  was  all  he  meant  to  say,  —  and  it  seems  to  have  been 
so,  —  we  can  hardly  excuse  Dr.  Brisbane  from  the  charge 
of  a  cunning  or  cowardly  unwillingness  to  intimate  his 
whole  mind ;  one  can  easily  guess  how  a  more  frank  expres- 
sion as  regards  imposture  on  the  part  of  the  Laird  of  Bar- 
garran's  daughter,  and  as  touching  the  folly  and  credulity 
of  the  Presbytery  of  Paisley,  and  generally  of  the  learned 
and  fashionable  world  of  Glasgow  and  of  all  Scotland, 
might  have  affected  the  prosperity  of  a  famous  and  suc- 
cessful physician;  but  it  was  the  part  of  a  scholar  and  of 
a  man,  at  such  a  time,  to  say  what  he  thought.  If  he  had 
done  it,  it  looks  very  much  as  if  he  might  have  saved  the 
lives  of  seven  poor  wretches  who  afterwards  died  for  this, 
and  might  have  checked  the  horrid  superstition  that  had 
many  a  victim  yet.  In  reality,  this  canny  statement  of  the 
expert  (if  it  be  really  his  exact  statement,  and  not  a  poor 
report  of  it),^  "  that  in  his  opinion  the  things  mentioned  in 
his  attestation  did  not  proceed  from  natural  causes  arising 
from  the  patient's  body,"  was  pressed  upon  the  jury  as  say- 
ing that  it  came  from  no  natural  causes  at  all.  These 
things,  said  the  government's  advocate  to  the  jury,  were 

^  We  cannot  be  quite  sure  ;  but  one  suspects  Dr.  Brisbane  grievously. 
This  deposition  and  subsequent  evidence  are  given  at  pages  129,  130, 
and  140  of  "  The  Witches  of  Renfrewshire,"  Paisley,  Alexander  Gardner, 
1877. 


348  LEGAL  ESSAYS 

"  deponed  by  Dr.  Brisbane,  in  his  opinion,  not  to  proceed 
from  a  natural  cause."  He  did  not  say  that ;  he  said  some- 
thing very  different  indeed  from  that,  and  yet  something 
that  might  easily  be  taken  for  it. 

But  not  yet,  as  regards  this  Scotch  case,  am  I  speaking 
of  wliat  seems  to  me  its  most  interesting  feature,  the  illus- 
tration it  furnishes  of  the  use  of  legal  machinery  in  ascer- 
taining questions  of  fact  touching  the  supernatural.  This 
is  found  in  the  two  arguments  for  the  government  to  which 
I  have  referred,  —  one  to  the  court,  the  othor  to  the  jury. 
There  is  something  very  ghastly  in  the  application  which 
they  furnish  of  the  formal  precision  of  legal  and  logical 
methods,  and  of  the  analogies  of  natural  science  to  a  con- 
sideration of  all  this  wretched  compound  of  imposture  and 
superstitious  misconception  which  was  laid  before  the  jury. 
Tliere  came  first  a  long  argument  to  the  court,  on  the  ques- 
tion of  receiving  the  "  spectral  evidence " ;  that  is,  the 
testimony  of  the  five  "  confessants  "  and  of  Christian  Shaw 
to  the  supernatural  sights  and  sounds  and  communications 
which  they  had  had,  —  all  of  which  was  ultimately  received 
and  submitted  to  the  jury.  The  line  of  argument  was  this : 
You  have  here,  the  counsel  said  to  the  court,  a  case,  where 
the  witchcraft  is  sufficiently  proved,  and  also  the  fact  that 
these  accused  persons  are  the  witches;  and  the  question 
is  of  admitting  in  such  a  case,  necessarily  involving,  as  it 
does,  the  existence  and  present  exercise  of  supernatural 
influences,  the  testimony  of  six  persons  testifying  to  their 
own  seeing  and  hearing  of  certain  things,  —  things  which 
are  in  their  nature  objects  of  sense.  The  crime  of  witch- 
craft is  an  occult  and  secret  one;  witches  work  in  secret 
and  invisibly  to  most  persons.  "  It  is  a  part  of  the  witches' 
purchase  from  the  devil  that  they  cannot  be  seen  at  some 
occasions ;  so  that  the  abominations  committed  then  would 
remain  unpunished  if  such  witnesses  were  not  admitted." 
When  these  witnesses  testify  to  going  and  coming  from 
meetings,  especially  on  foot;  falling  down  and  worshipping 
the  devil,  then  under  a  corporeal  shape  (and  he  had  such 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL     349 

a  shape  when  he  tempted  our  Saviour)  ;  the  murdering  of 
children  by  a  cord  and  napkin;  the  tormenting  of  others 
by  pins,  etc.,  they  speak  of  plain  objects  of  sense  and  are 
to  be  believed.  It  is  said  to  be  dangerous  to  allow  this,  since 
Satan  may  have  represented  others  by  false  shapes.  But 
here  other  facts  point  the  same  way,  and,  besides,  experience 
and  the  opinion  of  the  wisest  divines,  lawyers,  philosophers, 
physicians,  statesmen,  judges,  and  historians,  at  home  and 
abroad,  are  that  the  apparitions  of  witches  are  commonly 
real,  and  we  must  go  by  what  is  generally  true.  Moreover, 
it  is  easier  for  the  devil  to  transport  people  in  hurricanes, 
as  in  the  case  of  Job,  protecting  their  faces  so  that  they 
are  not  choked  with  the  rush  of  air,  than  it  is  to  form  the 
curious  miniature  of  fictitious  transactions  on  their  brain. 
It  is  both  a  greater  crime  and  pleasure  to  act  in  truth,  and 
the  devils  and  witches  do  so  in  fact  (unless  the  place  be  far 
distant  or  the  party  indisposed),  and  this  is  supported  by 
the  writers  and  witches  of  all  nations  and  ages.  The  extra- 
ordinary nature  of  these  things  is  not  to  diminish  the 
certainty  of  these  proofs,  for  in  law,  as  in  nature,  reality 
and  not  simulation  is  to  be  presumed.  Our  Saviour's  mira- 
cles were  the  subject  of  the  testimony  of  witnesses,  his 
transfiguration,  walking  on  the  waters,  standing  in  the 
midst  of  the  disciples  while  the  doors  were  shut,  and 
"  arguing  assurance  by  their  senses  that  a  spirit  had  not 
flesh  and  bones."  And  if  it  still  be  said  that  it  is  not  con- 
ceivable how  the  girl  or  witnesses  could  see  what  the  by- 
standers could  not  see,  besides  its  being  impossible  that 
real  bodies  should  enter  at  closed  doors  and  windows  and 
should  not  intercept  the  sight  of  what  is  behind  them,  the 
answer  is :  ( 1 )  that  we  are  not  to  deny  proved  facts  because 
philosophers  have  not  certainly  reached  yet  the  invisible 
manner  of  their  existence,  like  the  facts  of  nature  that  the 
loadstone  draws  iron  and  the  compass  turns  always  to  the 
pole,  and  the  facts  of  Scripture  that  an  angel  (and  the 
devil  was  an  angel  once,  and  retains  as  yet  his  old  power) 
smote  the  Sodomites  so  that  they  could  not  see  the  door 


350  LEGAL  ESSAYS 

while  they  did  see  the  house,  and  that  Balaam's  ass  saw 
the  angel  when  his  master  could  not  see  him;  and  (3) 
that  where  the  fact,  as  here,  is  proved,  it  is  enough  for 
us  to  suggest  a  possible  way  in  which  it  may  come  about; 
such  a  way  is  this,  namely:  Satan  is  a  personage  whose 
knowledge  and  experience  make  him  perfect  in  optics  and 
limning,  and  he  is  also  very  strong  and  agile,  "  whereby  " 
(and  here  I  cannot  do  justice  to  the  jSassage  without  exact 
quotation)  "he  may  easily  bewitch  the  eyes  of  others  to 
whom  he  intends  that  his  instruments  should  not  be  seen, 
in  this  manner  as  was  formerly  hinted,  namely,  he  con- 
stricts the  pores  of  the  witches'  vehicle,  which  intercepts 
a  part  of  the  rays  reflecting  from  her  body;  he  condenses 
the  interjacent  air  with  grosser  meteors  blown  into  it,  or 
otherwise  does  violently  agitate  it,  which  drowns  another 
part  of  the  rays;  and  lastly  he  obstructs  the  optic  nerves 
with  humors  stirred  towards  them:  all  which  joined  to- 
gether may  easily  intercept  the  whole  rays  reflecting  from 
their  bodies,  so  as  to  make  no  impression  upon  the  common 
sense;  and  yet,  at  the  same  time,  by  the  refraction  of  the 
rays  gliding  along  at  the  fitted  sides  of  the  volatile  couch, 
wherein  Satan  transports  them,  and  thereby  meeting  and 
coming  to  the  eye,  as  if  there  were  nothing  interjacent,  the 
wall  or  chair  behind  the  same  bodies  may  be  seen ;  as  a  piece 
of  money  lying  out  of  sight  in  a  cup  becomes  visible  how 
soon  the  medium  is  altered  by  pouring  in  some  water  on  it. 
Several  of  your  number  do  know  that  the  girl  declared  that 
she  saw  and  heard  the  door  and  tvindows  open  at  the  witches' 
entry,  when,  no  doubt,  the  devil  had  precondensed  a  soft 
postage  on  the  eyes  and  ears  of  others  to  whom  that  was 
unperceived.  So  Apolonius  escaped  Domitian's  flight,  and 
Giges  became  invisible  by  his  magical  ring.  John  of  Saris- 
berrie  tells  us  of  a  witch  that  could  make  anything  not 
to  be  seen;  and  Mejerus  relates  anotlier  that  had  the  like 
power.  Some  Italian  witches  of  greater  than  ordinary  wit 
confessed  to  Grilandus  the  devil  opening  doors  and  windows 
for  them,  though  the  more  ignorant  (witches)  by  a  fasci- 


TRIAL  BY  JURY  OF  THINGS  SUPERNATURAL      351 

nation  think  themselves  actors  of  this ;  whence  (our  lawyer 
concludes)  it  ought  not  to  be  doubted  by  any  reasonable 
man  wliat  in  all  times  and  places  is  so  incontestable  fact." 

There  was  much  more  in  this  singular  argument,  but 
surely  enough  has  been  quoted  to  mark  the  nature  of  the 
idle  and  wandering  speculations  into  which  a  legal  discus- 
sion may  degenerate  when  it  enters  upon  such  questions  as 
these.  What  the  considerations  were  that  prevailed  with 
the  court  we  do  not  know.  But  in  fact,  as  I  said,  all  this 
evidence  was  received;  some  of  it  under  a  cum  nota,  that 
is,  a  qualification  that  it  must  have  corroboration,  and  the 
rest  as  that  of  persons  not  old  enough  to  be  sworn,  and  so 
to  be  taken  with  caution. 

The  jury  at  the  trial  sat  continuously  for  twenty-six 
hours.  Such  was  the  custom  of  that  time  even  in  England, 
—  to  go  through  a  case  without  adjourning.  One  sees  many 
examples  of  it  in  the  State  Trials.  Twenty  hours  were 
taken  up  with  the  putting  in  of  the  evidence  and  incidental 
arguments ;  and  then  came  six  hours  for  the  final  addresses 
and  the  final  deliberation. 

The  government  advocate's  argument  to  the  jury  was 
brief.  (1)  He  drew  their  attention  to  the  extraordinary 
nature  of  these  occurrences,  which  on  the  one  hand  are 
true,  as  being  proved  by  unexceptionable  witnesses,  and  on 
the  other  are  very  strange,  of  a  sort  not  explainable  by  the 
ordinary  course  of  nature.  He  recited  all  that  I  have  men- 
tioned, and  more:  such  as  Christian  Shaw's  talking  once 
with  her  invisible  tormentors,  and  asking  them  about  their 
red  sleeves,  and  then  seizing  these  invisible  people  and 
pulling  away  two  pieces  of  red  cloth,  unlike  any  in  the 
house;  and  again  her  glove  being  lifted  from  the  floor  by 
an  invisible  hand.  It  is,  then  (so  he  argued),  plainly  to 
be  concluded  that  there  is  witchcraft  here.  (2)  He  en- 
larged upon  a  variety  of  circumstances  tending  to  show 
that  these  accused  persons  were  the  witches:  such  as  that 
all  of  them  had  "  insensible  marks  "  on  their  bodies,  that  is, 
places  which  were  not  sensitive;    most  of  them  had  long 


352  LEGAL  ESSAYS 

been  reputed  to  be  witches;  none  of  them  ever  shed  tears; 
the  touch  of  all  of  them  set  the  girl  into  torments ;  all  were 
named  by  her,  in  her  fits  or  out  of  them.  These  things, 
he  said,  which  the  wisdom  and  experience  of  all  nations 
recognize  as  the  marks  of  a  witch,  and  which  are  so  many 
discoveries  by  Providence  of  a  crime  that  would  otherwise 
remain  in  the  dark,  all  concur  in,  these  persons,  and  such 
a  concurrence  was  never  known  to  happen  when  they  were 
incorrect.  (3)  There  are  the  positive  depositions  of  the 
"  confessants "  to  the  actual  sight  of  the  devil  and  the 
witches  at  their  work.  As  to  these  depositions  and  Christian 
Shaw's  testimony,  the  "  spectral  evidence,"  he  drew  atten- 
tion to  circumstances  that  confirmed  the  witnesses;  for 
example,  their  concurrence,  and  the  fact  that  they  accused 
their  own  relatives.  Of  one  of  them  the  advocate  says, 
"  She  went  on  foot  to  the  meeting  (of  witches)  with  her 
father,  except  only  that  the  devil  transported  them  over 
the  water  Clyde,  which  was  easy  to  the  prince  of  the  air, 
who  does  far  greater  things  by  his  hurricanes." 

Such  were  these  arguments,  the  feature  which  gives  its 
peculiar  interest  to  this  Scotch  case.  It  will  be  observed 
that,  in  a  sense,  they  relied  upon  the  same  sort  of  thing 
that  would  be  relied  upon  to-day,  namely,  the  testimony 
under  oath  of  persons  speaking  to  what  they  say  they  have 
seen  and  heard,  and  the  testimony  of  experts  negativing 
(for  so  this  testimony  was  interpreted)  any  known  natural 
cause  as  competent  to  explain  the  facts  thus  proved.  It  is 
true  that  documents  were  laid  before  the  jury  that  would 
not  be  received  to-day,  —  for  instance,  a  long  narrative  of 
events  prepared  by  the  Presbytery  of  Paisley ;  but  the  pur- 
port of  it  was  the  same  in  kind  as  that  of  the  testimony. 
The  one  radical  difference  between  the  trial  as  it  was  con- 
ducted then  and  as  it  would  have  been  conducted  later, 
while  it  was  still  possible  to  try  for  witchcraft  (that  is,  down 
to  1736),  lay  in  the  different  preconceptions,  the  different 
mental  furniture  and  mental  attitude,  of  the  judge  and  jury 
at  the  trials.    The  "'  spirit  of  the  age  "  appears  in  the  things 


TRIAL   BY  JURY   OF  THINGS  SUPERNATURAL      353 

of  which  a  tribunal  will  take  judicial  notice,  as  the  lawyers 
say. 

A  great  and  admirable  English  judge,  Chief  Justice  Holt, 
who  came  in  at  the  English  Eevolution  and  sat  till  1710, 
tried  eleven  cases  of  witchcraft,  but  there  was  never  one 
conviction.  As  has  been  truly  said,  he  went  far  to  put  an 
end  to  witchcraft  trials  by  simply  directing  the  prosecution, 
in  1702,  of  one  liichard  Hathaway,  who  had  declared  him- 
self bewitched,  and  had  assaulted  a  woman  as  being  the 
witch.  At  that  trial  Holt  showed,  as  North  had  showed, 
what  a  shrewd  and  sensible  judge  might  do  and  might 
always  have  done,  even  with  all  the  danger  from  juries  at 
that  time:  he  himself  questioned  the  witnesses  narrowly 
and  in  a  way  to  reveal  imposture.  For  example,  a  witness 
had  said  that  he  saw  Hathaway  with  his  eyes  open  and  yet 
unable  to  see. 

Holt.     "And  yet  you  say  he  was  blind;    how  could  that  be?" 
Witness.  ..."  I  wagged  the  hair  of  his  eyelids  and  put  a  can- 
dle to  his  eyes,  and  he  took  no  notice  of  it." 

Holt.    "  How  could  you  know  that  he  did  not  see  ?  " 

Another  witness,  a  woman,  testified  that  she  thought 
Hathaway  bewitched. 

Holt.  ..."  Did  you  ever  see  anybody  bewitched?  " 

Witness.    "  Yes,  I  have  been  so  myself." 

Holt.    "  How  do  you  know  you  were  bewitched  ?  " 

The  woman  answered,  among  other  things,  that  she  "  flew 
over  the  heads  of  them  all." 

Holt.  "  Woman,  can  you  produce  any  of  those  women  that  saw 
you  fly?" 

Witness.    "  It  was  when  I  was  a  child.    They  are  dead." 

Hathaway  pretended  to  have  fasted  a  long  time.  One  of 
the  witnesses  called  by  him  was  a  doctor.  When  the  counsel 
had  done  with  him,  Holt  put  him  two  questions, 

"  Doctor,  do  you  think  it  possible,  in  nature,  for  a  man  to  fast 
a  fortnight  ? " 

Witness.    "  I  think  not,  my  lord." 

23 


354  LEGAL  ESSAYS 

Holt.    "  Can  all  the  devils  in  hell  help  a  man  to  fast  so  long?  " 
Witness.     "  No,  my  lord,  I  think  not :    and  that  made  me  to 
suspect  him."  i 

And  then  in  charging  the  jury  Holt  put  the  question  to 
them,  not  whether  Hathaway  was  bewitched,  but  whether 
"  he  was  under  a  delirium  of  his  mind,  and  did  fancy  him- 
self to  be  bewitched."  Here  we  have  a  man  whose  mental 
outfit  was  of  the  modem  style.  This  temper  was  not  favor- 
able to  prosecutions  for  witchcraft.  If  it  had  been  exhibited 
by  Sir  Matthew  Hale  or  the  Scotch  judges,  there  would 
probably  have  been  no  convictions  and  certainly  no  exe- 
cutions. 

'  [14  How.  St.  Trials,  639.] 


BRACTOIS^'S   NOTE   BOOK* 

[This  was  written  as  a  book  review  for  the  "  Nation,"  in  which 
it  appeared  on  March  22,  1888.  No  one  would  have  lamented  more 
than  Professor  Thayer  the  recent  untimely  death  of  Professor 
Maitland,  of  whose  work  he  had  the  highest  appreciation.] 

This  is  a  book  of  extraordinary  interest  and  value;  and 
the  importance  of  its  contents  is  well  supported  by  the 
thorough  and  admirable  manner  in  which  it  is  edited.  It 
presents  us  with  authentic  copies  from  the  judicial  records, 
hitherto  unpublished,  of  cases  in  the  King's  courts  of  the 
time  of  Henry  III,,  covering  nearly  the  first  twenty-four 
years  of  his  reign,  say,  1217-40.  Not  merely  that;  it 
is  a  selection  of  the  more  important  cases,  and  made  by 
a  contemporary  writer;  and  there  is  very  strong  reason 
indeed  to  believe  that  it  was  made  by  Bracton  himself. 

Bracton  was  one  of  the  principal  judges  of  the  time,  and 
the  author  of  a  great  legal  treatise  of  which,  comparing  it 
with  Blackstone,  Mr.  Maitland  well  remarks :  "  Twice  in 
the  history  of  England  has  an  Englishman  had  the  motive, 
the  courage,  the  power  to  write  a  great  readable,  reasonable 
book  about  English  law  as  a  whole."  It  has  been  the 
fashion,  at  one  time  and  another,  to  slight  Bracton  on 
account  of  his  use  of  matter  derived  from  what  has  been 
called  the  legal  plenum  of  that  period,  the  Eoman  law. 
Fitzherbert,  in  his  "Abridgment"  {Garde,  71),  has  pre- 
served a  remark  of  the  Judges  in  the  generation  just  pre- 
ceding his  own,  to  the  effect  that  Bracton  was  never  regarded 

1  "  Bracton's  Note  Book  "  :  A  collection  of  cases  decided  in  the  King's 
Courts  during  the  reign  of  Henry  III.,  annotated  by  a  lawyer  of  that 
time,  seemingly  by  Henry  of  Bratton.  Edited  by  P.  W.  Maitland  of  Lin- 
coln's Inn,  Barrister  at  Law,  Reader  of  the  English  Law  in  the  Univer- 
sity of  Cambridge.  London  :  C.  J.  Clay  &  Sons,  Cambridge  University 
Press  Warehouse.     1887.     Three  volumes,  octavo,  pp.  337,  720,  723. 


356  LEGAL  ESSAYS 

as  an  authority  in  English  law  —  "  et  tout  le  court  dit  que 
Bracton  ne  fuit  unques  tenus  pur  auctor  en  nostre  ley." 
This  was  repeated  by  a  chief  justice  in  the  next  century 
(Plowden,  .'358)  ;  and  in  the  last  century  we  hear  it  more 
than  once,  not  only  in  England,  but  on  the  Continent.  But, 
whoever  says  it,  we  know  it  now  for  a  shallow  and  ignorant 
remark;  we  know  that  the  sober  Eeeves  was  much  nearer 
right  when,  in  composing  his  "History  of  the  English  Law," 
he  praised  Bracton  so  highly  and  adopted  him  "  as  the  basis 
of  all  legal  learning."  Now  there  is  good  and  probably  suffi- 
cient reason  to  believe  that  we  have  here  a  note  book  of 
cases,  prepared  under  his  own  supervision,  which  Bracton 
used  in  the  preparation  of  his  great  work;  and  we  may 
now  have  the  novel  and  really  startling  satisfaction  of  test- 
ing and  weighing  Bracton's  statements  of  the  law  by  com- 
paring them  with  the  cases  upon  the  authority  of  which 
he  made  them.  It  is  many  a  year  since  any  contribution 
has  been  made  to  the  study  of  the  history  and  foundations 
of  the  English  law  which  is  at  all  comparable  to  this. 

The  manuscript  of  the  "  Note  Book  "  was  discovered  in 
the  British  Museum  in  1884  —  or  rather  the  true  character 
of  the  manuscript  was  first  suspected  then  —  by  Professor 
Vinogradoff  of  Moscow.  We  owe.  the  publication  of  it  now 
to  the  devotion  and  generosity  of  Mr.  Maitland.  He  speaks 
in  the  most  modest  way  of  his  excellent  editorial  labors : 

"  Before  I  am  blamed  for  having  done  less  than  might  have  been 
done  in  the  way  of  collating  rolls,  giving  various  readings,  making 
indexes  and  notes,  it  will,  I  hope,  be  remembered  that  this  has  been 
a  private  enterprise.  I  have  often  had  to  count  the  cost;  also 
to  reflect  that  another  day  in  the  Record  Offices  or  the  British 
Museum  would  mean  another  hundred  miles  in  the  train.  ...  As 
there  was  no  learned  society  whose  business  it  was  to  encourage 
the  study  of  English  legal  history  (for  the  Selden  Society  was  not 
yet  born  nor  even  thought  of),  it  seemed  likely  that  the  'Note 
Book  '  would  remain  unprinted  for  many  years  unless  some  one 
would  make  such  an  edition  of  it  as  could  be  made  at  his  own 
cost  and  without  giving  to  it  all  his  time.  Perhaps  I  was  not  the 
man  for  the  work ;    but  I  have  liked  it  well." 


BRACTON'S  NOTE   BOOK  357 

U'he  cases  themselves,  of  wliich  there  are  1983,  are  in 
the  Latin  of  the  original  rolls,  and  fill  two  stout  octavo 
volumes.  Then  there  is  another  thinner  first  volume,  con- 
taining a  short  preface,  an  account  of  the  discovery  of  the 
manuscript  by  Professor  Vinogradoff,  a  full  and  excellent 
introduction  by  Mr.  Maitland,  and,  finally,  a  careful  appara- 
tus of  tables  and  indexes.  For  many  people  the  index  of 
persons  and  of  places  vrill  have  much  interest,  exhibiting 
as  it  does  familiar  names  "of  the  present  day  upon  the 
judicial  rolls  of  six  or  seven  centuries  ago. 

The  discovery  of  the  real  nature  and  value  of  this  manu- 
script so  recently,  and  by  a  Eussian,  is  a  striking  reminder 
of  the  relative  backwardness  of  English  scholars  in  a  knowl- 
edge of  the  history  of  their  own  law.  Vinogradoff,  Pro- 
fessor of  History  at  Moscow,  while  investigating  the  sources 
of  mediaeval  history  in  England  in  1884,  in  the  course  of 
examining  Bracton  and  his  authorities,  was  referred  to  this 
manuscript.  A  careful  reading  of  it  and  comparison  with 
Bracton's  text  led  him  to  the  belief  that  "  it  was  drawn  up 
for  Bracton  and  annotated  by  him  or  under  his  direction." 
He  published  a  letter  in  the  "  Athenaeum "  for  July  19, 
1884,  giving  strong  reasons  for  this  opinion ;  and  the  matter 
was  then  taken  up  by  English  scholars.  England  owes  Mr, 
Maitland  much  for  having  come  forward  at  once  and  as- 
sumed the  great  labor  and  expense  of  this  publication.  And 
it  will  do  well  if  it  heeds  his  humorous  warning,  in  calling 
for  a  new  edition  of  Bracton's  treatise  —  so  lately  edited, 
in  a  very  discreditable  manner,  at  the  public  expense : 
"  Bracton's  treatise  ought  to  be  carefully  and  lovingly 
edited.  If  this  be  not  done  by  an  Englishman,  it  will  be 
done  by  a  foreigner  —  as  it  is  written :  Vocabo  super  eos 
genteni  robustam  et  longinquam  et  ignotam  cuius  linguam 
ignorabunt " ;  and  for  this  passage  he  duly  cites  his  au- 
thority, Bracton,  folio  34.  "  Carefully  and  lovingly  edited  " 
—  the  phrase  is  a  peculiar  one;  but  it  intimates  well  the 
character  of  the  writer's  own  patient,  scholarly,  thorough, 
admirable  work  in  editing  the  "  Note  Book." 


358  LEGAL  ESSAYS 

Passing  over  the  first  sixty  pages  of  his  Introduction, 
which  relate  to  Bracton's  treatise,  and  to  matters  illus- 
trating his  personal  history,  and  which  are  full  of  instruc- 
tion, we  come  to  what  takes  up  the  larger  part  of  the 
remaining  eighty  pages  —  an  excellent  account  of  the  ''  Note 
Book  "  and  of  its  relation  to  this  great  treatise.  The  manu- 
script was  bought  by  the  British  Museum  from  the  library 
of  a  Mr.  John  Holmes  of  East  Rexford.  A  few  pages  are 
missing  at  and  near  the  beginning,  and  an  unknown  amount 
is  wanting  at  the  end.  Some  memoranda  upon  it  in  a  hand 
of  the  fifteenth  century  indicate  that  it  was  in  about  its 
present  shape  then.  It  has  marginal  notes  in  a  hand  of 
the  thirteenth  century  which  appear  to  have  been  made 
by  the  person  for  whom  the  cases  were  copied.  In  compar- 
ing the  "  Note  Book  "  with  the  original  rolls,  Mr.  Maitland 
discovered  that  many  of  the  rolls  here  copied  are  not  now 
extant;  but  where  they  do  exist  he  found  a  circumstance 
which  we  must  let  him  tell  in  his  own  words: 


"  When,  having  copied  some  pages  of  the  '  Note  Book,'  I  took 
my  transcript  to  the  Record  Office,  in  the  hope  of  finding  the 
original  records,  I  expected  that  the  work  of  hunting  for  my  cases 
would  be  tedious.  To  my  surprise  and  delight,  on  taking  up  the 
first  roll,  I  discovered  that  the  work  had  been  done  for  me.  Every 
case  that  1  wanted  had  against  it  a  mark  of  an  obvious,  unmis- 
takable kind.  In  the  margin  of  the  roll,  down  the  whole  length 
of  the  case,  some  one  had  drawn  a  firm,  heavy  line,  in  color  a 
dark  rusty  brown;  to  look  at,  it  was  much  such  a  line  as  might 
have  been  drawn  by  the  old-fashioned  red-lead  pencil.  I  soon 
learned  to  know  that  this  '  scoring,'  as  I  call  it,  was  the  work  of 
the  man  who  had  the  '  Note  Book  '  made  for  him.  Whenever  there 
was  a  scored  roll,  the  cases  in  the  '  Note  Book  '  agreed  perfectly  with 
the  cases  on  that  roll,  saving  the  immaterial  omissions,  of  which 
hereafter,  and  saving  mere  clerical  blunders.  ...  In  some  in- 
stances the  copyist  has  apparently  obeyed  what  he  took  to  be  his 
instructions,  with  a  slavish  obedience;  he  has  left  out  the  im- 
portant end  of  a  case,  because  the  mark  on  the  roll  did  not  go  far 
enough,  or  has  copied  just  the  first  lines  of  the  next  case,  because 
the  mark  went  a  little  too  far." 


BRACTON'S  NOTE   BOOK  359 

Mr.  Maitland's  argument  (pp.  73-117)  for  thinking  the 
"  Note  Book  "  to  be  Bracton's  is  singularly  temperate ;  at 
the  same  time,  it  is  strong,  and  such  as  will  bring  many 
a  reader  to  join  with  him  in  the  "  revocable  judgment " 
which,  after  the  formula  of  the  rolls,  he  enters  up  at  the 
end  of  the  discussion :  "  Et  ideo  consideratum  est  quod 
Henricus  recuperavit  seisinam  suam,  saluo  iure  cuiuslibet." 
We  will  state  the  outline  of  the  argument,  but  much  of 
its  force  depends  on  circumstances  for  which  we  have  not 
room. 

Bracton's  treatise  cites  nearly  five  hundred  cases,  of  which 
two  hundred  are  found  in  the  "  Note  Book."  All  are  from 
three  classes  of  Rolls:  (1)  Of  the  bench  at  Westminster; 
(2)  Of  pleas  which  followed  the  King;  (3)  Eyre  Rolls. 
Both  the  treatise  and  the  "  Note  Book  "  begin  and  end  their 
collections  from  the  rolls  of  the  first  class  at  the  same  point. 
Both  begin  taking  cases  from  the  rolls  of  the  second  class 
at  the  same  point,  and,  as  regards  these,  all  the  cases  in 
both  are  from  the  same  six  consecutive  rolls.  Of  the  Eyre 
Rolls  the  treatise  cites  twenty,  and  the  "  Note  Book  "  only 
eight;  but  all,  in  both,  are  rolls  of  the  same  two  famous 
judges,  Pateshull  and  Raleigh ;  and  inasmuch  as  the  cases 
from  the  Eyre  Rolls  come  last  in  the  "  Note  Book,"  and  the 
end  of  this  is  lost,  a  reason  is  given  for  the  absence  from 
it  now  of  other  cases  of  this  class. 

Again,  there  is  a  close  and  curious  resemblance  between 
the  side-notes  and  other  annotations  of  the  "  Note  Book  " 
and  the  text  of  the  treatise.  The  nature  of  the  annotations, 
as  being  made  by  the  one  for  whom  the  work  was  done, 
their  references  and  omissions  to  refer  to  legislation,  and 
their  citations  of  other  cases,  indicate  pretty  plainly  their 
date  as  about  that  of  the  compilation  of  the  "  Note  Book  " 
itself,  viz.,  about  1240-56 ;  and  with  this  the  handwrit- 
ing agrees.  Curious  phrases,  the  same  context  of  words, 
the  same  peculiar  opinions,  and  the  same  errors  appear  in 
both.  As  regards  certain  not  perfectly  verifiable  cases 
briefly  cited  in  these  annotations,  e.  g.,  thus :    fere  casus 


360  LEGAL  ESSAYS 

Cole,  casus  Corbyn.  casus  Radulphi  de  Arundelle,  etc.  — 
Mr.  Maitland  examines  them  all.  Some  of  them  occur  in 
a  like  form  in  an  important  manuscript  of  the  treatise; 
others  appear  to  be  cases  tried  before  Bracton  himself,  or 
such  as  related  to  neighbors  or  i'riends  of  his,  or  are  in  some 
probable  way  connected  with  Bracton, 

The  last  of  Mr.  Maitland's  arguments  points  out  that 
the  "  Note  Book  "  and  the  treatise  are  both  "  guilty  of  the 
same  astonishing  blunder."  The  statute  of  Merton,  chapter 
ix.,  as  is  well  known,  preserves,  as  of  the  date  of  January  23, 
1235-6,  the  fact  that  the  Bishops  declared  that  they  could 
not  and  would  not  answer  certain  questions  relating  to 
bastardy  which  were  at  that  period  put  to  them,  and  that 
they  asked  the  Lords  to  consent  to  a  change  in  the  law, 
so  that  children  born  before  the  marriage  of  their  parents 
should  be  legitimated  by  the  after  marriage.  And  then 
came  the  famous  answer :  "  Et  omnes  comites  et  barones 
una  voce  responderunt  quod  nolunt  leges  Anglie  mutare 
que  usitate  sunt  et  approbate."  A  hundred  years  later 
(11  Ass.,  20)  Chief  Justice  Scrope  said,  in  explanation  of 
this  "  statute,"  that  previously,  if  it  was  alleged  that  a  man 
was  a  bastard,  it  was  usual  to  send  to  the  Bishop  to  certify 
in  this  form,  viz.,  whether  he  was  born  before  marriage 
or  after,  and  upon  the  answer  the  common-law  courts  gave 
judgment  according  to  the  law  of  the  land.  The  operation 
of  this  was  to  keep  the  question  of  law  in  the  hands  of  the 
common  law  judges  instead  of  leaving  it  with  the  clergy. 
There  had  been  in  October,  1234,  an  ordinance  requiring 
this  to  be  done;  and  the  statute  of  Merton  shows  that  the 
Bishops  refused  to  obey  it.  Now,  it  is  a  singular  fact  that 
Bracton  transposes  the  order  of  these  two  provisions;  he 
makes  the  ordinance  of  1234  follow  the  statute  of  Merton, 
as  of  October,  1236,  and  as  having  been  called  out  by  the 
refusal  recorded  in  the  "  statute."  This  error  in  Bracton 
was  pointed  out  by  Selden.  Now,  the  "  Note  Book  "  does 
the  same  thing,  with  a  variation;  it  makes  the  ordinance 
follow  the  statute  of  Merton,  only  it  carries  both  back  to 


BRACTON'S  NOTE   BOOK  361 

the  year  1334.  As  regards  these  enactments  there  are  also 
other  remarkable  resemblances  between  the  treatise  and  the 
"  Note  Book,"  in  points  where  both  differ  from  the  statutes ; 
and  these  are  brought  out  verj'  clearly  by  Mr.  Maitland 
by  the  use  of  parallel  citations. 

Such,  in  a  very  imperfect  summary,  are  the  arguments. 
While  "  the  value  of  this  book,"  as  the  editor  justly  says, 
"  does  not  depend  wholly  or  even  chiefly  "  on  the  success  of 
the  argument  that  it  is  Bracton's  own  "  Note  Book,"  he  rea- 
sonably considers  the  case  to  be  made  out,  and  sums  up 
thus: 

,"  The  treatise  is  absolutely  unique ;  the  '  Note  Book,'  so  far 
as  we  know,  is  unique;  these  two  unique  books  seem  to  have  been 
put  together  within  a  very  few  years  of  each  other,  while  yet  the 
statute  of  Merton  was  noua  gracia;  Bracton's  choice  of  authori- 
ties is  peculiar,  distinctive ;  the  compiler  of  the  '  Note  Book  '  made 
a  A'ery  similar  choice;  he  had,  for  instance,  just  six  consecutive 
rolls  of  pleas  coram  rege;  Bracton  had  just  the  same  six;  two- 
fifths  of  Bracton's  five  hundred  cases  are  in  this  book ;  every  tenth 
case  in  this  book  is  cited  by  Bracton;  some  of  Bracton's  most 
out-of-the-way  arguments  are  found  in  the  margin  of  this  book, 
in  particular  that  about  the  binding  of  land  by  warranty,  that  about 
the  ejectment  of  a  disseisor;  the  same  phrases  appear  in  the  same 
contexts.  Juste  propter  jus  sed  iniuste  propter  iniuriam.  Nihil 
certius  morte,  nihil  incertius  hora  mortis;  Corbyn's  case,  Ralph 
Arundell's  case  are  '  noted  up  '  in  the  '  Note  Book ' ;  they  are 
'noted  up'  also  in  the  Digby  MS.  of  the  treatise;  with  hardly 
an  exception  all  the  cases  thus  '  noted  up  '  seem  plainly  to  belong 
to  Bracton's  country,  to  affect  persons  whom  Bracton  must  have 
known,  Raleighs,  Traceys,  Gorges,  Blanchminsters,  Winscots, 
Arundells,  Punchardons;  lastly,  we  find  a  strangely  intimate 
agreement  in  error.  The  history  of  the  ordinance  about  special 
bastardy  and  the  Nolumus  of  Merton  is  confused  and  perverted 
in  the  same  way  in  the  two  books." 

As  regards  one  of  the  Latin  phrases  quoted  in  this  pas- 
sage —  when  Bracton  says,  "  licet  nihil  certius  sit  morte, 
nihil  tamen  incertius  est  hora  mortis,"  and  the  annotator 
says,  "  nihil  certius  morte,  nihil  incertius  hora  mortis,"  the 


362  LEGAL  ESSAYS 

suspicion  arises  that  both  may  be  using  some  familiar 
quotation  or  commonplace;  and  Mr.  Maitland  does  not 
overlook  this. 

"  Mors  incertarum  rerum  certissima  cunctis, 
Incertum  quando,  certtim  aliquando  mori  " ; 

SO  run  certain  seemingly  monkish  lines  of  unknown  origin, 
in  a  little  "  Flores  Poetarum  "  published  at  Cologne  in  171'^. 
And  Chaucer,  as  a  friend  reminds  us,  said,  in  the  "  Clerk's 
Tale,"  in  the  next  century  after  Bracton's: 

"  And  al  so  certein  as  we  knowe  echoon 
That  we  shal  deye  as  uncerteyn  we  alle 
Been  of  that  day  when  death  shal  on  us  falle." 

Perhaps  the  "  nihil  certius  morte  "  will  hardly  be  found  in 
any  classical  author.  And  yet  Bracton  does  quote  Horace. 
In  his  "  Est  enim  modus  et  mensura  et  fines  certi,  ultra 
quae  citra  quae  nequit  consistere  rectum"  (fol.  239  b),  one 
detects  the  passage  from  Sat.  i.,  106,  107 : 

"  Est  modus  in  rebus,  sunt  certi  denique  fines, 
Quos  ultra  citraque  nequit  consistere  rectum." 

Fleta  (Lib.  iv,  c. ;  23,  s.  4),  which  seems  to  belong  to  the 
date  of  1285,  or  thereabout,  repeats  this  (as  we  might  ex- 
pect) in  Bracton's  form,  but  with  the  slight  variation  of 
"  ultra  quae  et  citra."  And  then,  oddly  enough,  in  the 
"  Placitorum  Abbreviatio"  (226,  col.  2),  we  may  read  it 
actually  incorporated  in  the  records  of  the  King's  Courts 
in  precisely  Bracton's  form  (saving  only  an  evident  slight 
misprint),  at  the  end  of  a  long  judgment  of  1291  in  an 
Irish  appeal  on  .a  writ  of  right.  Among  a  variety  of  defects 
it  was  adjudged  that  the  form  in  which  the  parties  had  put 
themselves  upon  the  grand  assize  was  wrong.  Form,  the 
judgment  says,  is  necessary  here,  and  consent  of  the  parties 
will  not  cure  the  fault  (etc.,  etc.),  "cum  sit  modus  et 
mensura  et  fines  certi  ultra  quae  citra  quai  nequid   {sic) 


BRACTON'S  NOTE  BOOK  363 

consistere  rectum.  Ideo  consideratiim  est  quod  processus 
predictus  irritetur,"  etc.  Now,  evidently  the  writer  of  that 
judgment  might  have  taken  this  passage  from  his  Brac- 
ton,  or  even,  what  is  less  likely,  from  his  Fleta.  Or,  per- 
haps, Bracton's  use  of  it  had  made  it  a  commonplace.  Or 
was  it,  possibly,  already  a  commonplace  when  Bracton 
used  it? 

So  far  we  have  spoken  of  the  relation  of  the  "  Note  Book  " 
to  Bracton.  But  the  interest  of  it,  as  connected  with  other 
books  and  authors,  does  not  end  with  what  has  yet  been 
stated.  "  There  can  be  but  little  doubt,"  says  Mr.  Maitland, 
"  that,  some  two  hundred  and  fifty  years  after  its  making, 
it  came  to  the  hands  of  another  very  famous  lawyer,  of 
Chief  Justice  Sir  Anthony  Fitzherbert,  who  published  his 

*  Grand  Abridgment'  in  1514.  ...  If  Bracton  introduces, 
Fitzherbert  closes  one  great  period  of  English  law,  the  age 
of  the  Year  Books."  Mr.  Maitland  gives  his  reasons  for 
this  opinion,  and  they  are  very  strong.  We  will  merely  indi- 
cate them.  Fitzherbert  has  214  cases  from  the  reign  of 
Henry  the  Third,  of  which  207  are  from  the  first  twenty- 
four  years  of  the  reign  and  are  all  in  this  book,  and  seven 
only  are  from  the  later  thirty-two  years.  The  cases  are 
taken  from  the  same  rolls  and  follow  the  same  unusual 
order  adopted  in  the  "  Note  Book."  And  it  tends  a  little 
to  support  this  conclusion  that  here  and  there  in  the  '*'  Note 
Book"  words  (like  Corona,  etc.)  are  scribbled  in  it  in  a 
hand  of  the  fifteenth  or  sixteenth  century,  which  may  well 
have  been  the  catchwords  for  a  Digest : 

"  For  a  second  time,  therefore,  our  '  Note  Book '  entered  into 
the  history  of  English  law.  Mediately,  through  Fitzherbert,  it 
became  one  of  Coke's  main  authorities  (the  treatises  of  Glanvill 
and  Bracton  are  the  others),  for  what  was  law  before  the  days 
of  Edward  the  First,  his  only  authority  for  the  case  law  of  those 
days.  .  .  .  Tliat  Coke  had  studied  at  first  hand  the  rolls  of  the 
thirteenth  century,  there  are  very  few  signs  indeed;  he  was 
dependent  on  Fitzherbert,  and  Fitzherbert  was  dependent  en  this 

*  Note  Book.' " 


364  LEGAL   ESSAYS 

It  strikes  a  reader's  attention  that  the  number  of  cases 
in  Braeton  and  in  Fitzherbert  which  are  also  found  among 
the  2000  of  the  "  Note  Book,"  is  very  nearly  the  same.  But 
a  look  at  the  tables  given  by  Mr.  Maitland  indicates  that 
they  are  not  the  same  cases.  ^  Was  there  an  attempt  on 
Fitzherbert's  part  to  select  such  only  as  were  not  in  Brae- 
ton's  treatise  ?  It  looks  a  little  like  that ;  and  one  wonders 
what  that  may  mean.  The  reader  also  finds  himself  curious 
as  to  the  intermediate  history  of  the  "  Note  Book  "  —  from 
Fitzherbert  to  Mr.  John  Holmes  of  East  Rexford.  Could  not 
something  be  done  to  clear  this  up,  by  working  backward? 

And,  now,  what  is  it  that  one  finds  in  the  "  Note  Book  "  ? 
This  is  not  the  forum  for  any  extended  answer  to  that  ques- 
tion, nor  have  we  room  for  it  now.  But  it  may  be  said  in 
a  word  that  it  is  a  mine  of  treasure  for  the  student  of  our 
ancient  law.  To  one  who  has  any  acquaintance  with  the 
learned  researches  of  the  Germans  into  the  old  Frankish 
and  Germanic  law,  it  will  have  much  interest  —  both  giving 
and  receiving  light.  And,  again,  as  a  link  between  the  older 
law  and  the  Year  Books,  it  will  help  to  a  better  under- 
standing of  much  in  these  dark  volumes  which  the  lawyers 
of  their  own  time  did  not  understand.  The  puzzling  sub- 
ject of  the  secta  and  the  various  substitutes  for  it,  and  the 
earlier  usages  as  to  trial  by  jury,  are  illustrated  in  many 
of  the  cases.  As  regards  the  law  of  real  property,  "  num- 
berless points  are  here  set  in  a  clear  light."  There  is  much 
relating  to  the  jurisdiction  of  the  spiritual  courts.  Wager 
of  law  and  trial  by  battle  are  in  full  operation  at  this  time. 
Selden  remarks  (Duello,  c.  8)  :  "  Kare  are  the  examples 
of  battels  waged  upon  criminals  in  the  annals  of  the  English 
laws,  and  (if  I  forget  not)  the  least  plural  number  doubled 
comprehends  as  many  as  are  therein  reported  with  ensuing 
performance " ;  and  thereupon  he  cites  three  cases  from 
the  Year  Books.  At  least  three  more  may  be  found  in  the 
"  Note  Book."  A  highly  interesting  class  of  cases  are  the 
appeals  from  the  county  and  hundred  courts ;  they  disclose 
the  antiquated  procedure  and  usages  that  long  held  their 


BRACTON'S  NOTE   BOOK  365 

own  there,  when  newer  ideas  had  made  great  headway  in 
the  King's  Courts.  We  had  marked  a  number  of  these  eases 
for  quotation,  but  they  must  be  omitted.  "  In  the  eyes  of 
a  few  connoisseurs,"  says  Mr.  Maitland,  "  the  gems  of  this 
collection  may  be  two  cases  which  seem  to  show  that  feoff- 
ments to  uses  are  as  old  as  the  days  of  Henry  the  Third." 
But  perhaps  in  this,  as  a  learned  friend  suggests,  the  author 
seems  to  intimate  a  greater  significance  in  those  cases  than 
they  really  have. 

It  should  be  added  that  Mr.  Maitland  has  collated  all  his 
cases  with  the  originals  at  the  Record  Office  so  far  as  the 
rolls  are  now  extant ;  and  that  he  has  also  done  his  readers 
the  same  good  turn  as  in  his  excellent  publication,  three 
years  ago,  of  the  "  Gloucester  Pleas  of  the  Crown,"  in  ex- 
tending the  abbreviated  Latin  of  the  text.  We  have  now, 
in  Palgrave's  "  Rotuli  Curiae  Regis,"  a  copy  of  all  extant 
rolls  of  the  King's  Courts  from  the  beginning,  in  1194,  to 
the  year  1200,  being  those  of  the  sixth,  ninth,  and  tenth 
years  of  Richard  I.  and  the  first  year  of  John.  Then  come 
the  invaluable  selections  of  this  "  Note  Book,"  running 
from  1217  to  1240;  and  also  Mr.  Maitland's  other  volume 
before  referred  to,  the  "  Pleas  of  the  Crown  for  the  County 
of  Gloucester,"  in  1221.  And  the  much  abbreviated  con- 
tents of  the  "  Placitorum  Abbreviatio,"  in  a  way,  carry  us  on 
from  1194  to  1327.  These  comprise  about  everything  that  we 
now  have  in  print  of  that  magnificent  collection  of  Judicial 
rolls  now  roofed  within  the  Record  Office  in  London.  But 
we  have  a  promise  of  more,  thanks  to  the  Selden  Society, 
which  is  to  issue  to  its  subscribers  very  soon  a  collection  of 
Pleas  of  the  Crown,  to  be  edited  and  translated  by  Mr. 
Maitland,  which  will  help  to  bridge  the  gap  between  Pal- 
grave's volumes  and  the  "  Note  Book."  In  the  good  work 
upon  which  it  is  thus  entering,  we  trust  that  the  new  society 
will  be  heartily  encouraged  by  large  additions  to  its  funds 
and  its  membership.  It  is  most  fortunate  in  having  at  its 
service  so  learned,  accomplished,  and  devoted  a  scholar  as 
Mr.  Maitland. 


366  LEGAL  ESSAYS 

It  goes  hard  with  us  to  make  any  complaint  whatever, 
but  we  have  found  ourselves  wishing  now  and  then  that 
the  index  of  subjects  were  a  little  fuller  —  at  any  rate  in 
cross  references  —  and  that  an  index  for  the  Introduction 
had  not  been  omitted. 


THE    TEACHI^^G    OF    ENGLISH    LAW   AT 
UNIVERSITIES  1 

[At  the  annual  meeting  of  the  American  Bar  Association  in 
1894  Professor  Thayer  was  elected  chairman  of  the  Section  on 
Legal  Education.  It  thus  became  his  duty  to  deliver  the  chair- 
man's address  at  the  next  meeting  of  the  Association  at  Detroit, 
and  this  paper  was  prepared  for  that  purpose.  It  was  read  on 
August  27,  1895,  and  appears  in  the  Reports  of  the  American  Bar 
Association.  Vol.  18,  p.  409.  It  has  also  been  published  in  the 
Harvard  Law  Review  (9  Harv.  Law  Rev.  169).] 

In  so  great  a  country  as  ours,  so  wide  and  so  diversified, 
it  is  peculiarly  well,  now  and  then,  to  gather  together  from 
far  and  near,  and  meet  on  a  common  footing  as  Americans. 
And  so  we  have  come  now  to  this  beautiful  city,  a  novel 
and  strange  place  to  many  of  us,  to  breathe  for  a  day  or 
two  this  exhilarating  atmosphere  of  a  common  nationality, 
the  broad  and  general  air  that  blows  not  merely  here  or 
there  in  our  country,  but  everywhere ;  to  think  the  thoughts 
and  interchange  the  sentiments  that  concern  us  as  Ameri- 
can lawyers.  For  myself,  I  have  been  chiefly  moved,  in 
coming  here  from  the  far-away  sea-coast  of  Maine,  by  the 
desire  to  say  a  few  words  towards  urging  a  very  thorough 
and  learned  study  of  our  English  law,  and  the  maintenance 
of  schools  of  law  which  conform  in  all  respects  to  the  high- 
est University  standards  of  work. 

We,  in  America,  have  carried  legal  education  much  far- 
ther than  it  has  gone  in  England.     There  the  systematic 

*  The  reader  is  requested  to  observe  that  this  paper  does  not  deal 
with  mere  methods  of  teaching,  or  with  any  diflferences  which  may  be 
supposed  to  be  appropriate  in  undergraduate  instruction  as  contrasted 
with  that  of  postgraduate  and  professional  courses.  It  is  directed  to 
the  University  teaching  of  English  law,  by  whatever  methods  carried  on, 
in  whatever  departments,  and  for  whatever  purpose.  The  author  had 
chiefly  in  mind  the  "  law  schools  "  properly  so  called ;  that  Is  to  say, 
schools  aiming  directly  at  professional  education. 


368  LEGAL  ESSAYS 

teaching  of  law  in  schools  is  but  faintly  developed.  Here 
it  is  elaborate,  widely  favored,  rapidly  extending.  Why 
is  this  ?  Not  because  we  originated  this  method.  We  trans- 
planted an  English  root,  and  nurtured  and  developed  it, 
while  at  home  it  was  suffered  to  languish  and  die  down. 
It  was  the  great  experiment  in  the  University  teaching 
of  our  law  at  Oxford,  in  the  third  quarter  of  the  eighteenth 
century,  and  the  publication,  a  little  before  the  American 
Revolution,  of  the  results  of  that  experiment,  which  fur- 
nished the  stimulus  and  the  exemplar  for  our  own  early 
attempts  at  systematic  legal  education.  The  opportunities 
and  the  material  here  for  any  thorough  work  of  this  sort 
in  the  offices  of  lawyers  were  slight.  "  I  never  dreamed," 
said  Chancellor  Kent,  in  speaking  of  the  state  of  things 
in  New  York,  even  so  late  as  the  period  when  he  was  ap- 
pointed to  the  bench  of  the  Supreme  Court  of  that  State 
in  1798,  "  of  volumes  of  reports  and  written  opinions. 
Such  things  were  not  then  thought  of.  .  .  .  There  were 
no  reports  or  State  precedents.  I  first  introduced  a 
thorough  examination  of  cases,  and  written  opinions."  ^ 
But  wisdom,  skill,  experience,  and  an  acquaintance  with 
English  books  were  not  wanting  in  the  legal  profession 
here;  and  Blackstone's  great  achievement  awakened  tlie 
utmost  interest  and  enthusiasm  on  both  sides  of  the  water, 
—  his  success  in  the  really  Herculean  task  of  redeeming 
to  orderly  statement  and  to  an  approximately  scientific 
form,  the  disordered  bulk  of  our  common  law.  "  I  retired 
to  a  country  village,"  Chancellor  Kent  tells  us,  in  speaking 
of  the  breaking  up  of  Yale  College  by  the  war,  where  he 
was  a  student  in  1779,  "  and,  finding  Blackstone's  Com- 
mentaries, I  read  the  four  volumes.  .  .  .  The  work  inspired 
me  at  the  age  of  fifteen  with  awe,  and  I  fondly  determined 
to  be  a  lawyer."  As  a  student  in  the  office  of  the  Attorney- 
General  of  New  York,  in  1781  and  later,  he  says  that  he 
read  Blackstone  "  again  and  again."  ^     Blackstone's   lec- 

'  Green  Bag,  vli.  157. 
=  lb.  15.3. 


THE  TEACHING  OF  ENGLISH  LAW  369 

tures  were  begun  in  1753,  when  the  author,  then  only  thirty 
years  old,  a  discouraged  barrister  of  seven  years'  standing, 
had  retired  from  Westminster  and  settled  down  to  academic 
work  at  Oxford.  On  the  death  of  Viner  he  was  made, 
in  1758,  the  first  professor  of  English  law  at  any  English 
University;  and  he  published  his -first  volume  of  lectures 
in  1765.  "  There  is  abundant  evidence,"'  if  we  may  rely 
upon  the  authority  of  Dr.  Hammond,  whose  language  I 
quote,  "  of  the  immediate  absorption  of  nearly  twent3--five 
hundred  copies  of  the  commentaries  in  the  thirteen  colonies 
before  the  Declaration  of  Independence.  .  .  .  Upon  all 
questions  of  private  law,  at  least,  this  work  stood  for  the 
law  itself  throughout  the  country,  and  .  .  .  exercised  an 
influence  upon  the  jurisprudence  of  the  new  nation  which 
no  other  work  has  since  enjoyed."  ^  This  great  result, 
it  should  be  observed,  was  the  work  of  a  young  enthusiast 
in  legal  education,  a  scholar  and  a  University  man,  who 
had  the  genius  to  see  that  English  law  was  worthy  to  be 
taught  on  a  footing  with  other  sciences,  and  as  other  sys- 
tems of  law  had  been  taught  in  the  Universities  of  other 
countries. 

Blackstone's  example  was  immediately  followed  here,  and 
was  soon  further  developed  in  the  form  which  he  had  urged 
upon  the  authorities  at  Oxford,  but  urged  in  vain,  —  that 
of  a  separate  college  or  school  of  law.  In  1779,  the  year 
after  Blackstone  had  published  the  eighth  and  final  edition 
of  his  lectures,  and  only  a  year  before  his  death,  a  chair 
of  law  was  founded  in  Virginia,  at  William  and  Mary 
College,  by  the  efforts  of  Jefferson,  then  a  visitor  of  the 
institution;  and  in  the  same  year  Isaac  Eoyall  of  Massa- 
chusetts, then  a  resident  in  London,  made  his  will,  giving 
property  to  Harvard  College  for  establishing  there  that 
professorship  of  law  which  still  bears  his  name.  In  1790, 
Wilson  gave  law  lectures  at  the  University  of  Pennsylvania. 
The  Litchfield  Law  School,  established  about  1784,  was  not 

^  Hammond's  Blackstone,  ix. 
24 


370  LEGAL   ESSAYS 

a  University  school ;  yet  if  it  be  true,  as  is  not  improbable, 
that  it  was  the  natural  outgrowth  of  an  office  overcrowded 
with  students,  it  may  well  be  conjectured  that  Blackstone's 
undertaking  chiefly  shaped  and  sustained  it.  At  any  rate 
his  lectures  appear  to  have  been  the  chief  references  of  the 
instructors  at  Litchfield.  Hammond,  in  referring  to  a 
collection  of  verbatim  notes  of  lectures  at  the  Litchfield 
school  in  1817,  representing,  as  he  conceives,  "  the  exact 
teaching "  of  the  professors  of  that  time,  says  "  that  the 
references  to  Blackstone  not  only  outnumber  those  of  any 
other  book,  but  may  be  said  to  outnumber  all  the  rest 
together."  ^ 

In  England  little  progress  was  made  for  a  centur}^ 
Blackstone's  plan  for  a  law  College  at  Oxford  was  not 
carried  out,  and  he  resigned,  disappointed,  in  1766.  The 
conservatism  of  a  powerful  profession,  absorbed  in  the  mere 
business  of  its  calling,  itself  untrained  in  the  learned  or 
scientific  study  of  law,  and  unconscious  of  the  need  of  such 
training,  did  not  yield  to  or  much  consider  the  suggestions 
of  what  had  already  been  done  at  Oxford.  The  old  method 
of  office  apprenticeship  was  not  broken  up.  The  profession 
was  contented  with  Blackstone's  Commentaries,  as  if  these 
had  done  all  that  could  be  done  and  had  made  the  full  and 
final  restatement  of  the  law.  The  student  simply  added  to 
his  ordinary  work  the  reading  of  these  volumes. 

But  the  more  enlightened  members  of  our  profession  in 
England  have  keenly  felt  the  backward  state  of  things 
there.  One  of  the  greatest  of  them.  Sir  Richard  Bethell, 
afterwards  Lord  Chancellor  Westbury,  on  taking  his  seat 
as  president  of  the  Juridical  Society  forty  years  ago, 
lamented  the  neglect  of  legal  science  in  England  and  the 
strange  indifference  of  the  profession  to  the  pursuit  of  it. 
Lawyers,  he  says,^  "  are  members  of  a  profession  who, 
from  the  beginning  to  the  end  of  their  lives,  ought  to  regard 
themselves  as  students  of  the  most  exalted  branch  of  knowl- 

^  Ilammond's  Blackstone.  x.,  note. 
«  1  .Turid.  See.  Tap.  1. 


THE  TEACHING  OF  ENGLISH  LAW  371 

edge,  Moral  Philosophy  embodied  and  applied  in  the  laws 
and  institutions  of  a  great  people.  There  is  no  other  class 
or  order  in  the  community,"  he  adds,  "  on  whom  so  much 
of  human  happiness  depends,  or  whose  pursuits  and  studies 
are  so  intimately  connected  with  the  progress  and  well-being 
of  mankind."  In  enumerating  the  causes  of  this  failure  to 
appreciate  the  dignity  of  their  calling,  he  names  as  one  of 
the  chief  of  them,  "  the  want  of  a  systematic  and  well- 
arranged  course  of  legal  education.  ...  It  belongs,"  he 
adds,  "  to  the  Universities  of  England  and  to  the  Inns  of 
Court  to  fill  the  void;  but  for  centuries  the  duty  has  re- 
mained unperformed."  It  still  remains  very  imperfectly 
performed.  But  England  is  moving  in  the  direction  that 
Blackstone  pointed,  and  in  its  own  way  will  yet  solve  the 
problem.  Admirable  work  is  going  forward  there  now; 
and  how  full  a  sympathy  the  leaders  in  it  entertain  for  our 
own  efforts  is  shown  by  the  coming  of  Sir  Frederick  Pollock 
this  summer  to  take  part  in  the  exercises  at  Harvard,  on 
occasion  of  the  celebration  of  Dean  Langdell's  twenty-fifth 
anniversary.  He  crossed  the  ocean  for  that  mere  purpose, 
and  returned  as  soon  as  it  was  accomplished. 

On  this  side  of  the  water,  while  the  training  of  our  pro- 
fession continued  for  a  long  time  to  be  the  old  one  of  office 
apprenticeship  and  reading,  the  new  conception  —  new  as 
regards  English  law  —  of  systematic  study  at  the  Univer- 
sities, has  had  continuous  life,  and  has  borne  abundant  fruit. 
If  it  has  sometimes  languished,  and  here  and  there  been 
intermittent,  it  has  always  lived  and  thriven  somewhere; 
and  at  last  it  has  so  commended  itself  that  there  is  no 
longer  much  occasion  to  argue  its  merits.  Few  now  come 
openly  forward  to  deny  or  doubt  them. 

This,  then,  is  our  American  distinction,  to  have  accepted 
and  carried  for  a  century  into  practice  the  doctrine  that 
English  law  should  be  taught  systematically  at  schools  and 
at  the  Universities.  President  Eogers,  the  chairman  of  this 
Section  last  year,  told  us  that  there  were  then  seventy-two 
schools  of  law  in  this  country,  of  which  sixty-five  were  asso- 


372  LEGAL  ESSAYS 

ciated  with  Universities,  I  am  informed  upon  good  au- 
thority that  the  number  is  now  not  under  seventy-five  or 
seventy-six,  and  that  the  proportion  of  University  schools 
is  about  the  same  as  that  just  indicated. 

It  behooves  us  now  to  look  squarely  at  the  meaning  of 
these  facts,  and  at  the  responsibilities  that  they  lay  upon 
us.  The  most  accomplished  teachers  of  law  in  England 
have  seen  with  admiration  and  with  something  like  envy 
the  vantage-ground  that  has  been  reached  here.  We  must 
not  be  wanting  to  the  position  in  which  we  find  ourselves. 
Especially  we  must  not  be  content  with  a  mere  lip  service, 
with  merely  tagging  our  law  schools  with  the  name  of  a 
University,  while  they  lack  entirely  the  University  spirit 
and  character.  What,  then,  does  our  undertaking  involve, 
and  that  conception  of  the  study  of  our  English  system 
of  law,  which,  in  Blackstone's  phrase,  "  extends  the 
pomoeria  of  University  learning  and  adopts  this  new  tribe 
of  citizens  within  these  philosophical  walls  "  ?  It  means 
this,  that  our  law  must  be  studied  and  taught  as  other 
great  sciences  are  studied  and  taught  at  the  Universities, 
as  deeply,  by  like  methods,  and  with  as  thorough  a  concen- 
tration and  lifelong  devotion  of  all  the  powers  of  a  learned 
and  studious  faculty.  If  our  law  be  not  a  science  worthy 
and  requiring  to  be  thus  studied  and  thus  taught,  then,  as 
a  distinguished  lawyer  has  remarked,  "  A  University  will 
best  consult  its  own  dignity  in  declining  to  teach  it."  This 
is  the  plough  to  which  our  ancestors  here  in  America  set 
their  hand  and  to  which  we  have  set  ours ;  and  we  must  see 
to  it  that  the  furrow  is  handsomely  turned. 

But  who  is  there,  I  may  be  asked,  to  study  law  in  this 
way?  Who  is  to  have  the  time  for  it  and  the  opportunity? 
Let  me  ask  a  question  in  return,  and  answer  it.  Who  is 
it  that  studies  the  natural  or  physical  sciences,  engineering, 
philology,  history,  theolog}',  or  medical  science  in  this  way? 
First  of  all,  those  who,  for  any  reason,  propose  to  master 
these  subjects,  to  make  true  and  exact  statements  of  them, 
and  to  carry  forward  in  these  regions  the  limits  of  human 


THE  TEACHING   OF  ENGLISH   LAW  373 

knowledge;  and  especially  the  teachers  of  these  things. 
Second,  not  in  so  great  a  degree,  but  each  as  far  as  he  may, 
the  leaders  in  the  practical  application  of  these  branches 
of  knowledge  to  human  affairs.  Third,  in  a  still  less  degree, 
yet  in  some  degree,  all  practitioners  of  these  subjects,  if 
I  may  use  that  phrase,  who  wish  to  understand  their  busi- 
ness and  to  do  it  thoroughly  well. 

Precisely  the  same  thing  is  true  in  law  as  in  these  or  any 
other  of  the  great  parts  of  human  knowledge.  In  all  it  is 
alike  beneficial,  and  alike  necessary  for  the  vigorous  and 
fruitful  development  of  the  subject,  for  the  best  perform- 
ance of  the  every-day  work  of  the  calling  to  which  they 
relate,  and  for  the  best  carrying  out  of  the  plain  practical 
duties  of  each  man's  place,  that  somewhere  and  by  some 
persons  these  subjects  should  be  investigated  with  the  deep- 
est research  and  the  most  searching  critical  study. 

The  time  has  gone  by  when  it  was  necessary  to  vindicate 
the  utility  of  deep  and  lifelong  investigations  into  the  nature 
of  electricity  and  the  mode  of  its  operation,  into  the  nature 
of  light  and  heat  and  sound  and  the  laws  that  govern  their 
action,  into  the  minute  niceties  of  the  chemical  and  physi- 
ological laboratory,  the  speculations  and  experiments  of 
geology,  or  the  absorbing  calculations  of  the  mathematician 
and  the  astronomer.  Men  do  not  now  need  to  be  told  what 
it  is  that  has  given  them  the  steam-engine,  the  telegraph, 
the  telephone,  the  electric  railway  and  the  electric  light, 
the  telescope,  the  improved  lighthouse,  the  lucifer  match, 
antiseptic  surgery,  the  prophylactics  against  small-pox  and 
diphtheria,  aluminum  the  new  metal,  and  the  triumphs 
of  modem  engineering.  These  things  are  mainly  the  out- 
come of  what  seemed  to  a  majority  of  mankind  useless  and 
unpractical  study  and  experiment. 

But  as  regards  our  law,  those  who  press  the  importance 
of  thorough  and  scientific  study  are  not  yet  exempt  from 
the  duty  of  pointing  out  the  use  of  it  and  its  necessity.  To 
say  nothing  of  the  widespread  scepticism  among  a  certain 
class  of  practical  men,  in  and  out  of  our  profession,  as  to 


374  LEGAL  ESSAYS 

the  advantages  of  anything  of  the  sort,  there  is  also,  among 
many  of  those  who  nominally  admit  it  and  even  advocate 
it,  a  remarkable  failure  to  appreciate  what  this  admission 
means.  It  is  the  simple  truth  that  you  cannot  have  thorough 
and  first-rate  training  in  law,  any  more  than  in  physical 
science,  unless  you  have  a  body  of  learned  teachers;  and 
you  cannot  have  a  learned  faculty  of  law  unless,  like  other 
faculties,  they  give  their  lives  to  their  work.  The  main 
secret  of  teaching  law,  as  of  all  teaching,  is  what  Socrates 
declared  to  be  the  secret  of  eloquence,  understanding  your 
subject;  and  that  requires,  as  regards  any  one  of  the  great 
heads  of  our  law,  in  the  present  stage  of  our  science,  an 
enormous  and  absorbing  amount  of  labor. 

Consider  how  vast  the  material  of  our  law  is,  and  what 
the  subject-matter  is  which  is  to  be  explored,  studied,  under- 
stood, classified,  and  taught  in  our  schools  of  law.  It  lies 
chiefly  in  an  immense  mass  of  judicial  decisions.  These, 
during  several  centuries,  have  spelled  out  in  particular  in- 
stances, and  applied  to  a  vast  and  perpetually  shifting 
variety  of  situations,  certain  inherited  principles,  formulas, 
and  customs,  and  certain  rules  and  maxims  of  good  sense 
and  of  an  ever-developing  sense  of  justice.  It  lies  partly, 
also,  in  a  quantity  of  legislation. 

What  does  it  mean  to  ascertain  and  to  master,  upon  any 
particular  topic,  the  common  law?  It  means  to  ascertain 
and  master,  in  that  particular  part  of  it,  the  true  outcome 
of  this  body  of  material.  In  an  old  subject,  like  the  law 
of  real  property,  such  an  inquiry  goes  far  back.  In  a  new 
one,  like  constitutional  law,  not  so  far;  but  still,  even  in 
that  we  must  search  for  more  than  a  century,  and  if  we 
would  have  a  just  understanding  of  some  fundamental 
matters,  it  means  much  remoter  and  collateral  investigation. 
As  regards  a  great  part  of  our  law  it  is  not  comprehensible, 
in  the  sense  in  which  a  legal  scholar  must  comprehend  his 
subject,  unless  something  be  known,  nay,  much,  of  the 
great  volume  of  English  decisions  that  run  back  six  hun- 
dred years  to  the  days  of  Edward  the  First,  when  English 


THE  TEACHING   OF   ENGLISH   LAW  375 

legal  reporting  begins.  That  is  the  period  which  is  fixed, 
in  the  two  noble  volumes  of  "'  The  Histor}'  of  the  English 
Law  "  just  published  by  the  English  professors,  Sir  Fred- 
erick Pollock  of  Oxford  and  Mr.  Maitland  of  Cambridge, 
as  the  end  of  their  labors ;  viz.,  the  time  Avhen  legal  report- 
ing begins.  In  giving  the  reasons  for  dealing  with  this 
as  a  separate  period,  they  say  "  so  continuous  has  been  our 
English  legal  life  during  the  last  six  centuries,  that  the 
law  of  the  later  Middle  Ages  has  never  been  forgotten  among 
us.  It  has  never  passed  utterly  outside  the  cognisance  of 
our  courts  and  our  practising  lawyers."  Such  is  the  long 
tradition  that  finds  expression  in  the  law  of  this  very  day, 
and  of  this  place  in  which  we  sit.  The  volumes  just  men- 
tioned, ending  thus  six  centuries  ago,  themselves  throw 
light  on  much  which  concerns  our  own  daily  practice  in 
the  courts ;  and  they  indicate  the  value  and  importance  of 
much  remoter  investigation.  You  remember,  perhaps,  that 
the  judicial  records  of  England  carry  us  back  to  the  reign 
of  Eichard  the  First  in  1194,  seven  centuries  ago,  and  that 
there  are  scattered  memorials  of  earlier  judicial  proceedings 
for  another  century,  gathered  for  the  first  time  by  one  of 
the  most  learned  of  our  brethren  in  this  association,  Prof. 
Melville  M.  Bigelow. 

Much  of  this  vast  mass  of  matter  is  unprinted,  and  much 
is  in  a  foreign  tongue.  The  old  records  are  in  I^atin.  As 
to  the  Reports,  for  the  first  two  hundred  and  fifty  years 
after  reporting  begins,  it  is  all  in  the  Anglo-French  of  the 
Year  Books,  and  mostly  in  an  ill-edited  and  often  inaccu- 
rate form.  To  all  these  sources  of  difficulty  must  be  added 
the  generally  brief  and  often  very  uninstructive  shape  of 
the  report  itself.  A  few  of  the  earlier  Year  Books  have 
been  edited  in  thorough  and  scholarly  fashion,  accompanied 
by  a  translation  and  illustrations  from  the  manuscript 
records.  But  most  of  them  are  in  a  condition  which  makes 
research  very  difficult.  The  learned  historians  just  quoted 
have  said  that  "  the  first  and  indispensable  preliminary  to 
a  better  legal  history  than  we  have  of  the  later  Middle 


376  LEGAL  ESSAYS 

Ages  is  a  new,  a  complete,  a  tolerable  edition  of  the  Year 
Books.  They  should  be  our  glory,  for  no  other  country  has 
anything  like  them ;  they  are  our  disgrace,  for  no  other 
country  would  have  so  neglected  them,"  The  glory  and 
disgrace  are  ours  also,  for  English  law  is  ours.  Efforts 
on  both  sides  of  the  water  to  accomplish  this  result  have 
as  yet  failed;  but  they  should  succeed,  and  they  will  suc- 
ceed. I  wish  that  my  voice  might  reach  some  one  that 
would  help  in  securing  that  important  result.  It  would 
bring  down  the  blessing  of  legal  scholars  now  and  here- 
after. After  the  Year  Books,  come  three  centuries  and  a 
half  of  reported  cases  in  England;  and  one  of  these  cen- 
turies, more  or  less,  includes  the  multitudinous  reports  of 
our  own  country  and  of  the  English  colonies,  which  con- 
tinue to  pour  in  upon  us  daily  in  so  copious  and  ever- 
increasing  a  flood. 

Now,  will  it  be  said,  perhaps,  that  in  bringing  forward 
for  study  all  this  mass  of  material,  past,  present,  and  daily 
increasing  at  so  vast  a  rate,  I  am  recommending  an  im- 
possibility and  an  absurdity  ?  No,  I  am  not ;  I  speak  as  one 
who  has  seen  it  tried.  It  is  not  only  practicable,  but  a 
necessary  preliminary  for  first-rate  work.  One  or  two 
things  must  be  observed  here.  Of  course  no  one  man  can 
thus  explore  all  our  law.  But  some  single  thing  or  several 
connected  things  he  may;  and  every  man  who  proposes 
really  to  understand  any  topic,  to  put  himself  in  a  position 
to  explain  it  to  others,  or  to  restate  it  with  exactness,  must 
search  out  that  one  topic  through  all  its  development. 
Such  an  investigation  calls  for  much  time,  patience,  and 
labor,  but  it  brings  an  abundant  harvest  in  the  illumination 
of  every  corner  of  the  subject.  Another  thing  is  to  be 
noticed.  Not  all  our  law  runs  back  through  all  this  period. 
This  great  living  trunk  of  the  common  law  sends  out  shoots 
all  along  its  length.  Some  subjects,  like  the  law  of  real 
property,  crimes,  pleading,  and  the  jury  go  very  far  back; 
others,  like  the  learning  of  Perpetuities  or  the  Statute  of 
Frauds,  not  so  very  far ;  and  others  still,  like  our  American 


THE  TEACHING  OF  ENGLISH  LAW  377 

Constitutional  Law,  the  learning  of  the  Factors'  Acts,  of 
injuries  to  fellow-servants  and  other  parts  of  the  law  of 
torts,  are  modern,  and  perhaps  very  recent.  But  be  the 
subject  old  or  new,  or  much  or  little,  every  man  in  his  own 
field  of  study  must  explore  this  mass  of  material,  —  viz., 
all  the  decided  cases  relating  to  it,  —  if  he  would  thoroughly 
understand  his  subject. 

Before  I  pass  on,  let  me  say,  as  if  in  a  parenthesis,  a 
word  or  two  more  about  the  Year  Books.  These  great  re- 
positories of  our  mediaeval  law  have  been  the  subject  of 
many  cheap  and  foolish  observations,  as  to  their  mustiness 
and  mouldiness;  but  never,  so  far  as  I  know,  from  persons 
who  had  any  considerable  acquaintance  with  them.  It  has 
dwarfed  and  hurt  our  law  that  research  has  usually  stopped 
short  about  three  centuries  back;  as  to  what  went  before, 
it  has  been  the  fashion  to  accept  Coke  as  the  epitome,  or 
to  take  the  summaries  in  the  Abridgments.  Back  of  Coke, 
these  ill-printed,  unedited,  untranslated  folios,  the  Year 
Books,  have  stood  like  a  wall,  repelling  for  most  men  any 
further  search.  But  not  all  scholars  have  been  deterred; 
and  those  who  have  gone  through  these  volumes  have  found 
a  rich  reward.  Amidst  their  quaint  and  antiquated  learn- 
ing is  found  the  key  to  many  a  modern  anomaly;  and  the 
reader  observes  with  delight  the  vigorous  growth  of  the  law 
from  age  to  age  by  just  the  same  processes  which  work  in 
it  to-day  in  our  latest  reports.  There,  as  well  as  here,  to- 
gether with  much  that  is  petty  and  narrow,  one  remarks 
not  only  well-digested  learning  and  thoughtful  conserva- 
tism giving  its  reasons,  but  also  growth,  the  vigor  of 
original  thought,  liberal  ideas,  and  the  breaking  out  of  what 
we  call  the  modern  spirit. 

Coming  back  to  the  task  of  the  student  of  our  law,  it 
spreads  far  beyond  what  I  have  yet  set  forth ;  it  has  been 
wisely  said  that  if  a  man  would  know  any  one  thing,  he 
must  know  more  than  one.  And  so  our  system  of  law  must 
be  Qompared  with  others;  its  characteristics  only  come  out 
when  this  is  done.    As  to  the  examination  of  mediasval  and 


378  LEGAL  ESSAYS 

modern  continental  law,  we  have  hardly  made  a  beginning. 
When  we  trace  our  law  far  back,  the  only  possible  com- 
parison with  anything  long-lived  and  continuous  is  with 
the  Roman  law.  If  any  one  would  remind  himself  of  the 
flood  of  light  that  may  come  from  such  comparisons,  let 
him  recall  the  brilliant  work  of  Pollock's  predecessor  at 
Oxford,  Sir  Henry  Maine,  in  his  great  book  on  Ancient 
Law.  That  is  the  best  use  of  the  Roman  law  for  us,  as 
a  mirror  to  reflect  light  upon  our  own,  a  tool  to  unlock  its 
secrets.  And  so  the  recent  learned  historians  of  our  law 
have  used  it.  In  writing  of  the  English  system  of  writs 
and  forms  of  action,  for  instance,  they  put  meaning  into 
the  whole  matter  in  pointing  out  that  all  this,  beginning 
in  the  middle  of  the  twelfth  century,  finds  a  parallel  in 
Rome  "  at  a  remote  stage  of  Roman  history.  We  call  it 
distinctively  English;  but  it  is  also  in  a  certain  sense  very 
Roman.  While  the  other  nations  of  Western  Europe  were 
beginning  to  adopt  as  their  own  the  ultimate  results  of 
Roman  legal  history,  England  was  unconsciously  reproduc- 
ing that  history." 

Of  the  value  of  such  comparative  studies,  and  their 
immense  power  to  lift  the  different  subjects  of  our  law 
into  a  clear  and  animating  light,  no  competent  person  who 
has  once  profited  by  them  can  ever  doubt.  But,  again, 
observe  what  this  means.  It  means  adding  to  the  wide  and 
difficult  researches  already  marked  out  another  great  field 
of  investigation.  If  it  be  said  that  our  teacher  of  English 
law  may  profit  by  the  labor  of  others,  and  has  only  to  read 
his  "  Ancient  Law,"  and  his  "  History  of  I^nglish  Law," 
I  reply  that  the  field  is  still  largely  unexplored;  and, 
furthermore,  that,  for  the  scholar,  such  books  are  helps 
and  guides  for  his  own  research,  and  not  substitutes 
for  it. 

So  much  for  this  head  of  what  I  have  to  say.  Over  these 
vast  fields  the  competent  teacher  of  law  must  carefully  and 
minutely  explore  the  history  and  development  of  his  sub- 
ject.   I  set  down  first  this  thorough  historical  and  chrono- 


THE  TEACHING  OF  ENGLISH  LAW  379 

logical  exploration,  because  in  this  lies  hidden  the  explana- 
tion of  what  is  most  troublesome  in  our  law,  and  because 
in  this  is  found  the  stimulus  that  most  feeds  the  enthusiasm 
and  enriches  the  thought  and  the  instruction  of  the  teacher. 
The  dullest  topics  kindle  when  touched  with  the  light  of 
historical  research,  and  the  most  recondite  and  technical 
fall  into  the  order  of  common  experience  and  rational 
thought.  Sir  Henry  Maine's  book,  like  that  of  Darwin  in 
a  different  sphere,  at  about  the  same  time,  created  an  epoch. 
Such  books  have  made  it  impossible  for  the  law  student 
ever  again  to  be  content  with  the  sort  of  food  that  fed  his 
fathers,  with  that  "  disorderly  mass  of  crabbed  pedantry," 
for  instance,  as  our  recent  historians  of  the  law  have  justly 
called  it,  "  that  Coke  poured  forth  as  institutes  of  English 
law."  Never  again  can  he  receive  the  spirit  of  bondage 
that  once  bent  itself  to  teach  or  to  study  the  law  through 
such  a  medium.^ 

And  now  comes  another  labor  for  the  legal  scholar.  After 
such  researches  as  I  have  indicated,  in  any  part  of  the  law, 
the  outcome  of  it  is  certain  to  be  the  necessity  of  restating 
the  subject  in  hand.  When  things  have  once  been  thus  ex- 
plored and  traced,  many  a  hitherto  unobserved  relationship 
of  ideas  comes  to  light,  many  an  old  one  vanishes,  many 
a  new  explanation  of  current  doctrines  is  suggested  and 
many  a  disentangling  of  confused  topics,  many  a  clearing 
away  of  ambiguities,  of  false  theories,  of  outworn  and  un- 
intelligible phraseology.  There  is  no  such  dissolver  and 
rationalizer  of  technicality  as  this.  A  new  order  arises. 
And  so  when  the  work  of  exploration  has  been  gone  over, 
there  comes  the  time  for  producing  and  publishing  the 
results  of  it.  Admirable  work  of  this  sort,  and  a  good  bulk 
of  it,  has  already  been  done,  —  work  that  is  certain  to  be 
of  inestimable  value  to  our  profession.     In  some  instances 


'  In  saying  of  Coke  what  is  just  quoted,  it  will  be  observed  that  he  is 
dealt  with  as  a  writer  of  institutes  of  the  law.  Of  course  that  great 
name  stands  for  much  else  in  our  law  and  our  constitutional  history,  — 
for  much  which  is  great  and  good  and  never  to  be  forgotten. 


380  LEGAL  ESSAYS 

it  is  but  little  known  as  yet;  in  others,  it  appears  already 
in  our  handbooks  on  both  sides  of  the  ocean,  and  in  the 
decisions  of  the  courts. 

The  publishing  of  these  results  by  competent  persons  is 
one  of  the  chief  benefits  which  we  may  expect  from  the 
thorough  and  scientific  teaching  of  law  at  the  universities. 
Jn  no  respect  can  more  be  done  to  aid  our  courts  in  their 
great  and  difficult  task.  There  are  many  useful  handbooks 
for  office  use  and  reference,  and  some  excellent  ones.  But 
the  number  of  really  good  English  law  treatises  —  good,  I 
mean,  when  measured  by  a  high  standard  —  is  very  few 
indeed.  They  improve ;  and  yet,  to  a  great  extent  to-day, 
the  writers  and  publishers  of  law  books  are  abusing  the 
confidence  of  the  profession,  and  practising  upon  its 
necessities. 

If  I  am  asked  to  specify  more  particularly  the  sort  of 
thing  that  may  come  out  of  the  researches  to  which  [  have 
referred,  and  that  has  already  been  produced  from  the 
Universities,  I  am  tempted  to  refer  first  to  a  foreign  book 
about  one  of  our  English  topics,  —  a  book  which  is  a  little 
remote  from  our  every-day  questions,  but  full  of  value  in 
any  deep  consideration  of  the  subject,  —  the  admirable  His- 
tory of  the  Jury  by  Brunner,  professor  of  law  at  Berlin, 
published  in  1872.  That  is  a  book  of  the  first  class,  super- 
seding all  others  upon  the  subject;  and  yet,  to  the  dis- 
grace of  the  English-speaking  race,  it  has  not  yet  been 
translated  into  our  language.  English  and  American 
scholars  have  supplemented  the  work  of  Brunner;  and 
the  material  for  a  true  understanding  of  the  history  and 
uses  of  the  jury  system,  and  for  a  wise  judgment  as  to 
continuing  or  modifying  the  use  of  it,  were  never  anything 
like  so  good  as  now. 

Then  there  is  that  masterly  History  of  the  English  Law 
by  two  English  law  professors  of  our  own  time,  of  which 
I  have  already  spoken.  In  mentioning  this  book,  it  is  only 
just  to  Professor  Maitland,  one  of  the  finest  scholars  of  our 
time,  that  I  should  quote  the  remark  of  his  distinguished 


THE  TEACHING   OF   ENGLISH   LAW  381 

associate,  where  he  says  in  the  preface  that,  ''  although  the 
book  was  planned  in  common  and  has  been  revised  by 
both  of  us,  by  far  the  greater  share  of  the  execution  belongs 
to  Mr.  Maitland,  both  as  to  the  actual  writing  and  as  to 
the  detailed  research  which  was  constantly  required."  Of 
other  English  work  to  be  credited  to  the  Universities,  I 
have  already  mentioned  the  great  performances  of  Black- 
stone  and  Maine,  and  I  need  only  allude  to  the  important 
works,  well  known  among  us,  of  Dicey,  Holland,  Markby, 
and  Pollock.  Less  well  known,  but  masterly  in  its  way,  is 
Maitland's  editing  of  that  selection  from  the  judicial  records 
of  the  thirteenth  century  which  is  known  as  Bracton's 
"  Xote  Book,"  and  of  other  unpublished  material  brought 
out  by  the  Selden  Society. 

As  to  this  country,  I  will  not  mention  names.  I  need 
not  refer  to  the  famous  and  familiar  books  from  our  Uni- 
versity schools  of  law,  by  our  leaders,  living  and  dead.  I 
will  simply  say  this,  that  in  recent  times  the  researches  and 
contributions  of  our  own  teachers  of  the  law,  at  the  Uni- 
versities in  various  parts  of  the  country,  —  and  I  include 
now  not  less  than  seven  of  tliese  institutions,  —  have  pro- 
duced most  important  material,  which  is  already  finding 
its  way  into  the  current  handbooks  of  the  profession,  here 
and  in  England,  —  material  which  not  only  illuminates 
the  field  of  the  student's  work,  but  lightens  the  daily 
drudgery  of  the  bench  and  bar.  The  true  nature  of  equit- 
able rights  and  remedies;  the  doctrine  of  equitable  de- 
fences; the  history  and  analysis  of  the  law  of  Contract, 
Torts,  Trusts,  and  Evidence ;  tlie  nature  and  true  theory 
of  the  negotiability  of  obligations ;  the  nature  of  the  Com- 
mon Law  itself;  the  whole  doctrine  of  Quasi-Contract ; 
the  doctrine  of  Perpetuities,  —  these  things  make  only  a 
part  of  this  material.  As  I  said,  I  do  not  speak  of  work 
done  at  any  one  institution  or  in  any  one  part  of  the  country 
merely. 

But  now  suppose  some  one  says,  What  is  the  use  of  carry- 
ing on  our  backs  all  this  enormous  load  of  the  Common 


382  LEGAL  ESSAYS 

Law?  Let  us  codify,  and  be  rid  of  all  this  by  enacting 
what  we  need,  and  repealing  the  rest. 

Well,  I  am  not  going  to  discuss  codification.  There  is 
not  time  for  that.  And  the  word  is  an  ambiguous  one; 
some  good  things  and  some  bad  ones  are  called  by  this 
name.  I  will  only  say  that  as  yet  we  do  not  well  under- 
stand our  law;  it  is  our  first  duty  to  understand  it.  The 
effort  to  codify  it,  or  systematically  to  restate  it  for  pur- 
poses of  legislation,  —  for  any  purpose  other  than  a  merely 
academic  one,  —  should  come  later,  if  it  come  at  all.  To 
codify  what  is  only  half  understood  is  to  perpetuate  a  mass 
of  errors  and  shallow  ambiguities;  it  is  to  begin  at  the 
wrong  end.  Let  us,  first  of  all,  thoroughly  know  our 
ground.  I  can  say  this  with  confidence,  that  as  regards 
one  or  two  departments  of  law  with  which  I  have  a  con- 
siderable acquaintance,  I  have  never  seen  any  attempt  at 
codification,  here  or  abroad,  which  was  not  plainly  marked 
by  grave  and  disqualifying  defects.  Good-will,  strong  gen- 
eral capacity,  courage,  sense,  practical  gifts,  are  indeed  not 
wanting  in  some  of  these  attempts ;  but  a  competent  knowl- 
edge of  the  subject  is  wanting. 

My  honored  friend.  Judge  Dillon,  in  his  excellent  address 
last  year,  said  a  word  or  two  in  connection  with  this  sub- 
ject which  should  be  supplemented,  I  think,  by  a  word  or 
two  more.  In  speaking  of  law  reforms,  he  remarked  that 
"no  mere  doctrinaire  or  closet  student  of  our  technical 
system  of  law  is  capable  of  wise  and  well-directed  efforts 
to  amend  it.  This  must  be  the  work  of  practical  lawyers." 
If  the  expression  "  mere  doctrinaire  or  closet  student " 
refers  to  any  class  of  pedants  and  incompetent  persons 
who  do  not  appreciate  the  nature  of  what  they  are  stud}- 
ing,  I  should  not  wish  to  qualify  that  portion  of  the 
remark  just  quoted  which  reaches  them.  But  if  it  may 
be  supposed  to  allude  to  the  class  of  legal  scholars  as  such, 
to  the  experts  in  legal  and  juristic  learning,  this  remark, 
at  the  best,  is  but  half  a  truth.  The  practical  work  of 
carrying  through  any  considerable  measure  of  reform,  of 


THE  TEACHING  OF   ENGLISH   LAW  383 

getting  it  enacted,  is  indeed  peculiarly  a  task  for  the 
practical  lawyer.  His  judgment  also  is  important  in  the 
wise  shaping  of  such  a  measure;  as  his  authority  and  in- 
fluence will  be  quite  essential  in  gaining  for  it  the  con- 
fidence of  legislators  and  their  constituents.  But  no  "  wise 
and  well-directed  efforts "  of  this  character  can  dispense 
with  the  approval  and  co-operation  of  the  legal  scholar.  I 
am  speaking,  of  course,  of  competent  persons,  in  both  the 
classes  referred  to,  and  not  of  pedants  or  ignoramuses; 
and  am  assuming  on  the  part  of  the  systematic  student  of 
law,  as  on  the  part  of  the  judge  or  practitioner,  a  suitable 
outfit  of  sense,  discretion,  preliminary  professional  edu- 
cation, and  capacity  to  understand  the  eminently  practical 
nature  of  the  considerations  which  govern  the  discussion 
of  legal  questions.  Perhaps  I  may  be  permitted  to  speak 
on  this  subject  with  the  more  confidence,  as  having  been  a 
busy  practitioner  at  the  bar  of  a  large  city  for  eighteen 
years,  before  beginning  an  experience  as  a  professor  at  the 
Hansard  Law  School  which  has  now  continued  for  twenty- 
one  years. 

Professor  Dicey  has  remarked,  I  believe,  of  the  jurist's 
work  in  England,  of  the  sort  of  work  which  he  himself  has 
so  admirably  done,  that  it  "  stinks  in  the  nostrils  "  of  the 
average  English  practitioner;  and  Sir  Frederick  Pollock, 
in  his  inaugural  lecture,  twelve  years  ago,  as  Corpus  Pro- 
fessor of  Jurisprudence  at  Oxford,  in  speaking  of  his  asso- 
ciates there.  Dicey  and  Bryce  and  Anson,  says,  with  dignity, 
that  they  are  "  fellow-workers  in  a  pursuit  still  followed  in 
this  land  by  few,  scorned  or  depreciated  by  many,  the  sci- 
entific and  systematic  study  of  law."  ^  That  state  of  things 
is  slowly  disappearing  in  England,  as  well  as  here,  with  the 
gradual  improvement  in  the  legal  education  of  the  bar. 
One  of  the  best  and  most  important  results  of  this  improve- 
ment will  be  a  more  cordial  respect  and  a  closer  co-operation 
between  the  different  parts  of  our  profession,  the  scholars 

•  Oxford  Lectures,  38. 


384  LEGAL  ESSAYS 

and  the  men  of  affairs.  Nothing  is  more  important  to  the 
dignity  and  power  of  our  common  calling. 

Let  me  now  finally  come  down  to  this  question:  If 
what  I  have  been  saying  as  to  the  scope  of  the  work  of 
the  University  teaching  of  law  be  true,  what  does  it 
mean  as  regards  the  outfit  and  the  carrying  on  of  these 
schools  ? 

It  means  several  things.  (1)  Limiting  the  task  of  the 
instructors.  Instead  of  allotting  to  a  man  the  whole  of 
the  common  law,  or  half  a  dozen  disconnected  subjects  at 
once,  it  means  giving  him  a  far  more  limited  field,  —  one 
single  subject,  perhaps;  two  or  three  at  most;  if  more 
than  one,  then,  if  possible,  nearly  related  subjects;  to  the 
end  that  his  work  of  instruction  may  be  thoroughly  done, 
and  that  as  the  final  outcome  of  his  studies  some  solid, 
public,  and  permanent  contribution  may  be  made  to  the 
main  topic  which  he  has  in  hand. 

It  means  (2)  that  instructors  shall  give,  substantially, 
their  whole  time  and  strength  to  the  work.  In  mastering 
their  material  and  qualifying  themselves  for  their  task,  they 
have  in  hand,  say  for  the  next  two  generations,  much  for- 
midable labor  in  exploring  the  history  and  chronological 
development  of  our  law  in  all  its  parts.  On  this,  as  I  have 
indicated,  a  brave  beginning  has  been  made,  and  it  is  already 
yielding  the  handsomest  fruits.  They  have  also,  of  course, 
all  the  detail  of  their  difficult  main  work  of  teaching;  and 
this,  when  the  work  is  fitly  performed,  calls  for  an  amount 
of  time,  thought,  and  attention  bestowed  on  the  personal 
side  of  a  man's  relation  to  his  students  which  instructors 
now  can  seldom  give.^ 

'  [Of  methods  of  teaching  nt  the  Harvard  Law  School  Professor 
Thayer  has  said :  "  Of  teaching  there  has  never  been  at  this  school  any 
prescribed  method.  There  never  can  be,  in  any  place  where  the  best 
work  is  sought  for.  Every  teacher,  as  I  have  said  elsewhere,  '  In  law,  as 
In  other  things,  has  his  own  methods,  determined  by  his  own  gifts  or 
lack  of  gifts,  —  methods  as  incommunicable  as  his  temperament,  his 
looks,  or  his  manners.'  But  as  to  modes  of  study,  a  very  different 
matter.  Dean  Langdell's  associates  have  all  come  to  agree  with  him. 
where  they  have  ever  differed,  In  thinking,  so  far  at  least  as  our  system 
of  law  is  concerned,  that  there  Is  no  method  of  preparatory  study  so 


THE  TEACHING  OF  ENGLISH   LAW  385 

It  means  (3)  that  the  pupils  also  shall  give  all  their  time 
to  the  work  of  legal  study  while  they  are  about  it.  There 
is  more  than  enough  in  the  careful  preliminary  study  of 
the  law  to  occupy  three  full  years  of  an  able  and  thoroughly 
trained  young  man.  It  is,  I  think,  a  delusion  to  suppose 
that  this  precious  seed-time  can  profitably  be  employed,  in 
any  degree,  in  attendance  upon  the  courts  or  in  apprentice- 
ship in  an  office.  I  do  not  speak,  of  course,  of  an  occasional 
excursion  into  these  regions  when  some  great  case  is  up  or 
some  great  lawyer  is  to  be  heard,  or  of  the  occasional  con- 
tinuous use  of  time  in  such  ways  during  these  long  vaca- 
tions which  are  generally  allowed  nowadays.  Nor  do  I 
mean  to  deny  that  attendance  upon  courts  to  witness  the 
trial  of  a  case  now  and  then  will  be  a  good  school  exercise. 
I  speak  only  of  systematic  attempts  to  combine  attendance 
at  law  schools  with  office-work  and  with  watching  the  courts. 
The  time  for  all  that  comes  later,  or  perhaps  in  some  cases, 
before. 

It  means  (4)  that  generous  libraries  shall  be  collected  at 
the  Universities  suited  to  all  the  ordinary  necessities  of 
careful  legal  research ;  and  it  also  means  gathering  at  some 
one  point  in  the  country,  or  at  several  points,  the  best  law 
library  that  money  can  possibly  buy. 

And  (5),  in  saying  that  proper  University  teaching  of 
law  means  all  this,  I  am  saying  in  the  same  breath  that 
it  means  another  thing,  viz.,  the  endowment  of  such 
schools.  The  highest  education  always  means  endowment; 
the  schools  which  give  it  are  all  charity  schools.     What 

good  as  the  one  with  which  his  name  is  so  honorably  connected,  —  that 
of  studying  cases,  carefully  chosen  and  arranged  so  as  to  present  the 
development  of  principles.  Doubtless,  the  mode  of  study  must  greatly 
affect  the  mode  of  teaching ;  if  students  are  to  prepare  themselves  by 
studying  cases,  their  teachers  also  must  study  them.  And,  moreover, 
while  good  teaching  will  differ  widely  In  its  methods,  there  is  at  least 
one  thing  in  which  all  good  teaching  will  be  alike ;  no  teaching  Is  good 
which  does  not  rouse  and  '  dephlegmatize  '  the  students,  —  to  borrow  an 
expression  attributed  to  Novalis.  —  which  does  not  engage  as  its  allies, 
their  awakened,  sympathetic,  and  co-operating  faculties.  As  helping  to 
that,  as  tending  to  secure  for  an  Instructor  this  chief  element  of  success, 
I  do  not  think  that  there  Is  or  can  be  any  method  of  study  which  is  com- 
parable with  the  one  In  question."     1  Thayer's  Const.  Cas.,  Preface,  vL] 

25 


386  LEGAL  ESSAYS 

student  at  Oxford  or  Cambridge,  at  Harvard,  Yale,  Co- 
lumbia, Ann  Arbor,  or  Chicago  pays  his  way?  We  must 
recognize,  in  providing  for  teacliing  our  great  science  of 
the  law,  that  it  is  no  exception  to  the  rule.  Our  law  schools 
must  be  endowed  as  our  colleges  are  endowed.  If  they  are 
not,  then  the  managers  must  needs  consult  the  market,  and 
consider  what  will  pay;  they  will  bid  for  numbers  of  stu- 
dents instead  of  excellence  of  work.  They  will  act  in  the 
spirit  of  a  distinguished,  but  ill-advised  trustee  of  one  of 
the  seats  of  learning  in  my  own  State  of  Massachusetts, 
when  he  remarked,  "  We  should  run  this  institution  as  we 
would  run  a  mill;  if  any  part  of  it  does  not  pay,  we 
should  lop  it  off."  They  will  come  to  forget  that  it  is  the 
peculiar  calling  of  a  University  to  maintain  schools  that 
do  not  pay,  or,  to  speak  more  exactly,  to  maintain  them 
whether  they  pay  or  not;  that  the  first  requisite  for  the 
conduct  of  a  University  is  faith  in  the  highest  standards 
of  work;  and  that  if  maintaining  these  standards  does 
not  pay,  this  circumstance  is  nothing  to  the  purpose,  — 
maintained  they  must  be,  none  the  less.  It  has  been 
justly  said  that  it  is  not  the  office  of  a  University  to 
make  money,  or  even  to  support  itself,  but  wisely  to  use 
money. 

If,  then,  we  of  the  American  Bar  would  have  our  law 
hold  its  fit  place  among  the  great  objects  of  human  study 
and  contemplation ;  if  we  would  breed  lawyers  well  grounded 
in  what  is  fundamental  in  its  learning  and  its  principles, 
competent  to  handle  it  with  the  courage  that  springs  from 
assured  knowledge,  and  inspired  with  love  of  it,  —  men  who 
are  not,  indeed,  in  any  degree  insensible  to  worldly  ambi- 
tions and  emoluments,  who  are,  rather,  filled  with  a  whole- 
some and  eager  desire  for  them,  but  whose  minds  have 
been  lifted  and  steadied  and  their  ambitions  purged  and 
animated  by  a  knowledge  of  the  great  past  of  their  profes- 
sion, of  the  secular  processes  and  struggles  by  which  it 
has  been,  is  now,  and  ever  will  be  struggling  towards  jus- 
tice and  emerging  into  a  better  conformity  to  the  actual 


THE  TEACHING  OF  ENGLISH   LAW  387 

wants  of  maiikind,  —  then  we  must  deal  with  it  at  our 
Universities  and  our  higher  schools  as  all  other  sciences 
and  all  other  great  and  difficult  subjects  are  dealt  with,  as 
thoroughly,  and  with  no  less  an  expenditure  of  time  and 
money  and  effort. 


INDEX 


ADAMS,  BROOKS,  quoted,  31. 
ADMINISTRATION, 
colonial,  167. 

good,  the  weak  point  in  government  of  United  States,  131. 
ru'e  of, 

concerning  change  of  decision  in  State  Courts,  150. 
concerning  questions  of  constitutionality,  10,  83. 

denied  or  doubted,  22. 

early  statements  of,  17. 

form  of,  25,  31,  84. 

meaning  of,  21,  27,  30,  31. 

more  than  a  mere  form,  21,  22,  25. 

statements  of,  19,  83. 
ADVISORY   OPINIONS, 

colonial  period,  in,  52,  54,  184. 

Colorado,  in,  34,  42,  43,  185. 

Confederation,  under  the,  51. 

Delaware,  in,  55. 

England,  in,  34,  46,  55,  182. 

Federal  Convention,  proposal  as  to,  in,  43. 

Florida,  in,  42,  43,  185. 

Hawaii,  in,  43. 

history  of  practice  of,  in  England,  182. 

international,  suggested,  181. 

Kentucky,  in,  55. 

Maine,  in,  34,  42,  44,  55,  58,  185. 

Massachusetts,  in,  42,  44,  45,  49,  185. 

Minnesota,  in,  54. 

Missouri,  in,  43,  45,  57,  185. 

Nebraska,  in,  55. 

New  Hampshire,  in,  42,  44,  50,  185. 

New  York,  in,  54. 

not  an  exercise  of  judicial  function,  34,  46,  182. 

not  authoritative,  34,  46,  58,  182. 

origin  of  provisions  for,  in  American  constitutions,  45,  184. 

Pennsylvania,  in,  54,  55,  185. 


390  INDEX 

ADVISORY    OPINIONS  —  continued. 
Rhode  Island,  in,  42,  44,  45,  52,  185. 
Soutli  Dakota,  in,  42,  43,  185. 
United  States,  in,  43,  53,  182,  185. 
Vermont,  in,  54. 

Washington's  attitude  towards,  43,  53,  182,  185. 
AGENCY,  declarations  as  part  of  the  res  gesta  in  cases  of,  2G8. 
ALASKA, 

Indians  in,  94. 
purchase  of,  169. 
ALMANAC,  the,  as  part  of  the  common  law,  326. 
AMENDMENTS, 

to  constitution  of  United  States, 

continent,  limiting  States  of  Union  to,  suggested,  180. 
early,  operation  of,  171. 
possible,  though  diflicult,  33,  180. 
provisions  in  Constitution  itself  as  to,  201. 
to  State  constitutions, 

convention  concerning,  205, 
Rhode  Island,  doctrine  in,  concerning,  42,  205. 
"  AMERICAN   CASES,"  the  phrase,  248. 
ARISTOTLE   quoted,  78. 
ART,  trial  by  jury  of  questions  of,  320. 
AUSTIN  quoted,  203. 


BAGEHOT  quoted,  47. 

BANK.    See  National  Banks ;   State  Banks;   United  States. 
BANKRUPTCY,  declarations  as  part  of  the  res  gesta  in  cases  of, 
251-256. 

BATTLE,  trial  by,  364. 
BENTHAM, 

attacks  of,  on  rules  as  to  competency  of  witnesses,  311. 

influence  of,  324. 

BEST  quoted,  47. 

BILLS  OF  CREDIT,  constitutionality  of  emission  of,  63,  67. 
See  Legal  Tender ;   Money;   Papeb  Money. 

BISHOP  quoted,  75,  282. 

BLACKSTONE, 

influence  of,  on  teaching  of  English  law,  368  et  seq. 

quoted,  123,  372. 
BLASPHEMY,  325. 
BONDS,   constitutionality  of,  beyond  debt  limit,  142. 


INDEX  391 

BORROWING  by  Government,  87. 

See  Legal  Tekdeb  ;   Paper  Money. 

BRACTON, 

"  Note  Book  "  of,  reviewed,  355-366. 

quoted,  223. 
BRADLAUGH,  Mr.  Charles,  193. 
BRADLEY,  Chief  Justice,  pamphlet  of,  42,  205. 
BRISBANE,  Dr.,  testimony  of,  347. 
BROSIUS,  Mr.  S.  M.,  quoted,  125. 
BROWNE,  Sir  Thomas, 

quoted,  330. 

testimony  of,  331. 

BRYCE  quoted,  39. 
BURRILL  quoted,  247. 

CALHOUN  quoted,  202. 

CAMPBELL,  Lord,  quoted,  333. 

CHANGE   IN  DECISION  of  State  courts,  elTect  of,  143. 

CHARTERS,  colonial, 

character  of,  3. 

Constitution  of  United  States  derived  from,  3,  198. 
CHASE,  Chief  Justice,  quoted,  86. 
CHIPMAN,  D.,  quoted,  6. 
CHRISTIAN  quoted,  254. 

CHRISTIANITY  as  part  of  the  common  law,  326. 
CITIZENS, 

history  and  meaning  of  term,  122. 

Indians  as,  of  United  States,  162. 

inhabitants  of  newly  acquired  possessions  as,  of  United  States, 
162. 

inhabitants  of  "  territories  "  as,  of  United  States,  173. 

of  different  states,  federal  jurisdiction  as  between,  144. 
COCKBURN,  Chief  Justice,  quoted,  211-214,  220,  229-232,  237,  247, 

263,  273,  280-283,  291. 
CODIFICATION  discussed,  382. 
COIN.    See  Legal  Tender  ;   Money. 
COKE,  work  of,  characterized,  379. 
COLOMBIA,  constitution  of,  II. 
COLONIES, 

advisory  opinions  in,  52,  54,  184. 

constitutional  power  of  United  States  to  acquire,  160.  162. 
to  govern,  157,  162. 


392  INDEX 

COLONIES  —  continued. 

definition  of,  166. 

England's  experience  in  governing,  166,  178. 

not  "  un-American  "  to  hold  and  govern,  166. 

"  territories  "  of  United  States  are,  165. 
COLORADO,  advisory  opinions  in,  34,  42,  43,  185. 
COLUMBUS  quoted,  98. 

COMMERCE,  INTERSTATE,  observations  on  regulation  of,  36. 
COMMERCIAL   LAW,  treatment  by  federal  courts  of  questions  of 

general,  145. 
CONNECTICUT, 

charter  of,  4. 

early  opinion  in,  concerning  judicial  power  under  constitution, 
6,7. 
CONSPIRACY,  declarations  as  part  of  the  res  gesta  in  cases  of,  268. 

CONSTITUTIONS, 

American,  before  federal  instrument,  198. 

European.  2,  3,  15,  16,  199. 

See  Administeation ;    Judicial  Power;    Legislature;  Eng- 
land;   United  States;   Kentucky;   etc. 
CONSTITUTIONALITY.    See  Judicial  Power;    Legislature. 
CONTRACTS,  impairing  obligation  of.  67,  82. 

Gelpcke  v.  Dvbuqiic  does  not  involve  question  of,  148,  152. 

questions  of,  in  federal  courts,  144,  152. 
COOLEY  quoted,  22.  27.  83. 
CRIMINAL    CASES, 

admissions  in,  and  in  civil  cases,  221. 

evidence  against  accused  must  l>e  given  in  his  presence  in,  221. 

fresh  complaint  as  evidence  in,  generally,  227. 

same  rule  as  to  declarations  as  part  of  the  res  gesta  in,  and  in 
civil  cases,  220,  282. 

See  Witnesses. 
CUBA,  156,  157. 
CURRENCY,  constitutional,  69. 

See  Bills  of  Credit;   Money. 

DANE   quoted,  238. 

DAWES,  Senator,  quoted,  124. 

DECEASED  PERSONS,  declarations  of,  271,  303. 

DECISION,  change  in.     See  Change  in  Decision. 

DECLARATIONS, 

as  part  of  the  res  gesta,  207-304. 
agency  cases,  in,  268. 


INDEX  393 

DECLARATIONS  —  continued. 

bankruptcy  cases,  in,  251-256. 
intention,  in  cases  involving,  300. 

physical  or  mental  condition,  in  cases  involving,  291-299. 
rape  cases,  in,  222-236. 

rule  concerning,  and  rule  against  hearsay,  263  et  seq. 
statutes  affecting  rule  as  to,  303. 
See  Res  Gesta. 
deceased  persons,  of,  271,  301. 
dying,  209,  210,  211. 
DEFINITION  of  legal  terms,  need  of,  220. 
DELAWARE,  advisory  opinions  in,  55. 
DENMAN,  Lord,  quoted,  207. 
DEPARTMENTS  OF  GOVERNMENT, 

pari/ial  judicial  sanction  introduced  among,  32. 
the  three,  carefully  marked  off  in  American  constitutions,  8. 
DICEY, 

"  Law  of  the  Constitution  "  by,  reviewed,  191-200. 
quoted,  2,  25,  33,  383. 
DILLON,  Judge,  quoted,  382. 
DOUBT.    See  Reasonable  Doubt. 

ELECTORAL  COMMISSION,  trial  of  contested  election  of  1876  by, 

204,  341. 
EMERSON  quoted,  205. 
ENGLAND, 

advisory  opinions  in,  34,  46,  55,  182. 
Constitution  of,  191-206. 
teaching  of  law  in.    See  Univebsities. 
witches,  trial  of,  in,  330. 

witnesses,  legislation  as  to  competency  of,  in,  323. 
'ESPINASSE  quoted,  244. 
EVANS  quoted,  241,  242. 
EVIDENCE, 
law  of, 

a  rational  system,  307. 
effect  of  jury  in  determining  shape  of,  265. 
questions  of,  began  to  be  much  canvassed,  244. 
rules  excluding  what  is  logically  good,  main  part  of,  307. 
substantive  law,  questions  of,  often  treated  as  questions 
of,  306. 
relevancy  of,  305,  308. 

FEDERAL   AND  STATE    DECISIONS,  141-152. 
FEDERAL  SYSTEM,  necessities  of  a,  198, 


394  '  INDEX 

FLETCHER,  Miss  Alice,  quoted,  98,  137. 
FLORIDA,  advisory  opinions  in,  42,  43,  185. 
FORM,  requirement  of,  362. 
FRANQUEVILLE,  le  Comte  de,  quoted,  39. 

G  ARROW  quoted,  240. 

OELPCKE  V.   DUBUQUE,  doctrine  of,  141-152. 

GIBSON, 

views  of,  as  to  unconstitutional   legislation,  compared  with 
Marshall's,  2. 
GOD,  the  existence  of,  assumed  in  English  law,  325. 
GRANTED  POWERS  in  Constitution.    See  United  States. 
GRAY,  Professor,  quoted,  33. 
GREENLEAF  quoted,  213,  219,  226,  253,  257-260,  262. 

HALE,  Sir  Matthew,  quoted,  60,  78,  223. 
HAMILTON  quoted,  76,  84,  147. 
HAMMOND,  Dr.,  quoted,  369,  370. 
HARE,  Bishop,  quoted,  135,  136,  139. 
HARE,  Judge,  quoted,  39. 
HART,  Professor,  quoted,  165. 
HAWAII, 

advisory  opinions  in,  43. 

annexation  of,  156,  157,  169,  179. 

"  territory,"  a,  164. 
HEARSAY,  rule  against.    See  Declarations  ;  Res  Gesta. 
HOADLY,  Bishop,  quoted,  33. 
HOLMES,  Mr.  Justice,  quoted,  72,  79. 

HOLT,  Chief  Justice,  manner  of,  in  trials  for  witchcraft,  353. 
HORACE  quoted,  362. 

IMPLIED   POWERS  in  Constitution.    See  United  States. 
INDIANS,  91-140. 

"  A  People  without  Law,"  91-140. 

agreements  with,  116. 

citizens,  as,  92,  93,  162. 

"  civilized  tribes  "  of,  93. 

Congress,  full  power  of,  over,  118,  163. 

constitutional  provisions  as  to,  105,  119. 

coroner's  juries,  on,  319. 

courts  for,  133. 

"  Dawes  Bill  "  concerning,  91,  120. 


INDEX  395 

INDIANS  —  continued. 

history  of  legislation  of  United  States  concerning,  110. 

history  of  relations  with,  97. 

"  Indian  country,"  109,  11-'. 

interference  with,  gradual  increase  of,  9G,  114. 

legal  status  of,  91. 

in  Alaska,  94. 

in  Maine,  93,  101. 

in  Massachusetts,  93,  101,  107. 

in  NcAV  York,  93,  101. 

on  reservations,  93. 

in  Virginia,  108. 
occupancy,  allowed  right  of,  109. 
reservations  for,  94. 
separate  ownership  of  land  by,  110. 
taxation  of,  127. 
territorial  sovereignty,  95. 
testimony  of,  315. 
traders  among,  103,  104. 
treaties  with,  96,  103,  108. 
tribal,  not  on  reservations,  93. 
tribal  relation  of,  92. 
tribe  sovereignty  among,  95. 
witnesses,  as,  315. 

INTERNATIONAL  USAGES,  181-190. 
See  Advisory  Opinions. 

INTERSTATE   COMMERCE.    See  Commebce. 

JOHNSON,  Andrew,  treatment  of  question  of  constitutionality  by, 

16. 
JOHNSON,  Dr.,  quoted,  76. 
JOSEPH,  Chief,  quoted,  135,  136. 
JUDICIAL  INTERPELLATION,  reporting  of,  237. 
JUDICIAL  LEGISLATION,  150. 
JUDICIAL  POWER, 

advisory    opinions,    exercise    of,    in    giving.      See    Advisoet 

Opinions. 
American  constitutions,  under,  1-41. 

amounts  only  to  postponed  control  over  legislative  acts,  11. 

colonial  charters,  derived  from,  3. 

co-ordinate  department,  in  dealing  with,  15,  33. 

denied  or  doubted  at  first,  1,  5. 

doctrine  of,  not  a  necessary  result,  2,  3,  199. 

true,  importance  of,  38. 
early  proposals  as  to,  11. 


396  INDEX 

JUDICIAL    POWER  —  continued. 

early  reasoning  concerning,  14. 

inferential  rather  than  express,  1. 

origin  of,  3,  200. 

political  theories  to  be  disregarded  in  exercise  of,  30. 

proper  manner  of  exercising,  9,  32. 

scope  of,  8,  27,  30,  83. 

States,  of  federal  courts  in  dealing  with  legislation  of,  35. 
of  State  courts  in  dealing  with  legislation  of,  37. 

territories,  in,  175. 

virtue,  sense,  and  knowledge  always  to  be  imputed  to  legis- 
lature by  courts  in  exercise  of,  28. 

writings,  considered  as  construction  of,  12,  29. 
European  constitutions,  under,  2,  3,  15,  16,  199. 
written  constitutions,  under,  2,  15. 
See  Administeation. 
JURY, 

ancient  right  of,  to  find  verdict  on  their  own  knowledge,  333. 

anciently  at  once  witnesses  and  triers,  311. 

character  of,  at  time  of  witchcraft  trials,  333. 

continuous  sittings  of,  351. 

evidence,  effect  of,  in  determining  shape  of  law  of,  264. 

expert  witnesses  before,  332. 

punishing,  for  improper  acquittal,  333. 

trial  by, 

art,  of  questions  of,  326. 

right  to,  under  Constitution,  172,  174. 

spiritualism,  of  questions  of,  327. 

things  supernatural,  of,  325-354. 

witchcraft,  of  questions  of,  329,  332. 
witnesses  before,  311. 

KENT,  Chancellor,  quoted,  177,  368. 
KENTUCKY, 

advisory  opinions  in,  55. 

Constitution  of,  1. 

division  of  power  in,  8. 

LANGDELL,  Professor, 

anniversary  number  of  Harvard  Law  Review  dedicated  to,  310. 

method  of  teaching  law  associated  with,  384. 
LAW, 

rule  or  supremacy  of,  194. 

teaching  of  English,  at  Universities,  367-387. 
LEGAL  TENDER, 

constitutionality  of  laws  concerning,  10,  60-90. 


INDEX  397 

LEGAL    TENDER  — continued. 

money  and,  not  convertible  terms,  75. 

power  to  issue  notes  as,  necessary  and  proper  for  exercise  of 
granted  powers,  83. 

involved  in  power  to  issue  paper  currency,  84. 
to  borrow,  87. 
See  Bills  of  Credit  ;  Money  ;  Paper  Money. 

LEGISLATURE, 

determination  of  constitutionality  by,  9,  11,  27. 

function  of,  as  to  constitutionality,  27. 

virtue,  sense,  and  knowledge  always  to  be  attributed  to,  28. 

LETTERS  OF  REQUEST.    See  Letters  Rogatory. 

LETTERS  ROGATORY,  a  precedent  for  international  consultative 

opinions,  187. 
LYXDE,  Chief  Justice,  quoted,  315,  319. 

MADISON  quoted,  65,  66,  67. 

MAILS,  sovereign  power  of  United  States  in  relation  to,  161. 

MAINE, 

advisory  opinions  in,  34,  42,  44,  55,  58,  185. 

Indians  in,  93,  101. 

witnesses,  legislation  as  to  competency  of,  in,  323. 
MAINE,  Sir  Henry,  quoted,  95,  200,  203,  324,  333. 
MAITLAND  quoted,  355-365. 
MARSHALL, 

a  pioneer  in  constitutional  law,  13. 

treatment  by,  of  question  of  judicial  power  under  constitution, 
15,  40. 

views  of,   as   to   unconstitutional   legislation   compared   with 
Gibson's,  2. 
MASON,  Jeremiah,  quoted,  23. 
MASSACHUSETTS, 

advisory  opinions  in,  42,  44,  45,  49,  185. 

Constitution  of,  division  of  power  in,  8. 

Indians  in,  93,  101,  107. 

witches,  trial  of,  in,  330. 
MATHER,  Cotton,  quoted,  330. 
MERTON,  Statute  of,  360. 
MILES,  General,  quoted,  136. 
MILITARY  LAW.    See  Soldier. 
MILL  quoted,  75. 
MILTON  quoted,  155. 
MINNESOTA,  advisory  opinions  in,  54. 


398  INDEX 

MISSOURI,  advisory  opinions  in,  43,  45,  57,  185. 
MONEY, 

clauses  of  Constitution  concerning,  60. 

meaning  of  term,  75. 

See  Bills  of  Credit  ;    Legal  Tender  ;    Paper  Money. 
MOOT  COURTS  at  Law  Schools,  141. 
MORALITY.    See  Nature,  Laws  of. 
MORGAN,  General,  quoted,  1.30. 
MORRIS,  Gouverneur,  quoted,  06. 
MUNICIPAL  bonds.    See  Bonds. 
MURRAY,  Attorney-General,  qiioted,  200. 

NATIONAL  BANKS,  issuance  of  notes  by,  88. 

NATURE,  LAWS  OF,  as  affecting  constitutionality  of  legislation, 

6,  7,  204. 
NEBRASKA,  advisory  opinions  in,  55. 
NEW  HAMPSHIRE,  advisory  opinions  in,  42,  44,  50,  185. 
NEW    TRIALS,  beginning  of  practice  of,  333. 
NEW   YORK, 

advisory  opinions  in,  54. 

Indians  in,  93,  101. 
NISI    PRIUS,  reports  of  cases  at, 

beginning  of,  244. 

unsatisfactory,  221. 
NORTH,  Roger,  quoted,  334,  335,  336. 
NOVALIS   quoted,  385. 

OATH, 

requisites  of  an,  320. 

trial  by,  316. 
OHIO,  early  opinion  in,  concerning  judicial  power  under  constitu- 
tion, 7. 
OPINIONS,  advisory.    See  Advisory  Opinions. 

PALFREY,  Dr.,  quoted,  99,  100,  315. 
PALGRAVE   quoted,  95. 
PAPER  MONEY, 
power  to  issue 

involved  in  coinage  clause,  84. 
in  power  to  borrow,  85. 
in  power  to  regulate  commerce,  84.  85. 
in  power  to  regulate  value  of  coin,  85. 
See  Bills  of  Credit  ;   Legal  Tender  ;   Money. 


INDEX  399 

PARLIAMENT,  sovereignty  of,  194. 

PENNSYLVANIA,  advisory  opinions  in,  54,  55,  185. 

PHILIPPINE   ISLANDS,  156,  157,  179. 

PHILLIPPS   quoted,  243. 

PHILLIPPS   and   AMOS   quoted,  2G2,  266.     ' 

POLICE  POWER,  so-called,  27. 

POLLOCK,  Sir  Frederick,  quoted,  181,  190,  381,  383. 

POLLOCK   and   JVIAITLAND  quoted,  375,  378,  379. 

PRESCOTT  quoted,  242. 

PRIMA    FACIE    presumptions,  268. 

PUERTO  RICO,  156,  157. 

QUAKERS, 

as  witnesses,  313. 
on  grand  juries,  315. 

RAPE,  declarations  as  part  of  the  res  yesta  in  cases  of,  222-236. 

REASONABLE   DOUBT, 

analogies  in  the  law  for  rule  concerning,  in  judicial  sanction  of 
legislative  acts,  25,  29. 

See  Administration. 
REEVES   quoted,  356. 

RELEVANCY  of  evidence,  not  an  affair  of  law,  305,  308. 
REPEAL  of  unconstitutional  acts,  early  practice  of,  6. 
REPORTING, 

of  cases  at  nisi  prius,  221,  244. 

of  judicial  interpellations,  237. 

RES   OESTA, 

declarations  as  part  of  the,  207-304. 
phrase, 

character  of,  244. 
history  of,  237-243. 
meanings  of,  245-248. 

singular  better  than  plural  form  of,  207,  244,  248,  291. 
See  Declarations. 
RESERVATIONS,  INDIAN,  94. 
RHODE  ISLAND, 

advisory  opinions  in,  42,  44,  45,  52,  185. 
charter  of,  4. 

early  opinion   in,  concerning  judicial   power  under   Constitu- 
tion, 5. 

ROMAN   LAW,  378. 


400  INDEX 

ROSCOE  quoted,  227. 

RUFFIN,  a  pioneer  in  constitutional  law,  13. 

RUSSELL  quoted,  224. 

SAY   quoted,  75. 

SCOTLAND,  trial  of  witches  in,  341. 
SELDEN  quoted,  329,  364. 
SELDEN   SOCIETY,  356,  365. 

SELF-GOVERNMENT, 
often  a  curse,  167. 

right  of,  underlying  theory  of  government  of  United  States, 
170. 

SHAKESPEARE  quoted,  123. 

SHAW,  a  pioneer  in  constitutional  law,  13. 

SLAVES, 

ballot  given  to,  132. 

colonists  not,  166. 

Constitution,  not  mentioned  in,  105. 
SMITH,  Adam,  quoted,  76. 
SMITH,  Commissioner,  quoted,  134,  138. 
SOLDIER,  dilemma  of  a,  under  the  law,  25,  195. 
SOUTH   DAIiOTA,  advisory  opinions  in,  42,  43,  185. 
SOVEREIGNTY, 

legal,  in  the  United  States,  200-204. 

Parliament,  of,  194. 

political,  discriminated  from  legal,  200. 

tribal  and  territorial,  95. 
SPAIN, 

treaty  with,  156,  179. 

war  with,  154. 
SPIRITUALISM,  questions  of,  in  court,  327. 
STARKIE  quoted,  246,  251,  261. 

STATE   BANKS,  constitutionality  of  emission  of  bills  by,  62. 
STATE  COURTS, 

bias  in,  146. 

law  of,  when  followed  in  courts  of  United  States,  144. 
STEPHEN  quoted,  25,  196,  227,  232,  234,  237,  283,  284,  290. 
STORY  quoted,  242. 

SUPERNATURAL,    methods    of    the    law    in    dealing    with    the, 

.S2,')-354. 
SWIFT  quoted,  243. 


INDEX  401 

TALFOURD  quoted,  334. 

TAYLOR  quoted,  210,  215-220,  226,  235,  236,  247,  250,  253,  263, 

281. 
TERRITORIES, 

acquisition  of,  by  the  United  States,  history  of,  168. 

citizens  of,  173. 

Constitution  of  United  States  in,  operation  of,  171,  174,  176, 

178. 
government  of  old,  like  government  of  colony,  165. 
judicial  power  in,  175. 
legal  status  of  inhabitants  of  new,  to  be  fixed  by  Congress,  164. 

not  a  matter  of  concern  to  framers  of  Constitution,  175. 
new,  constitutional  power  of  United  States  to  acquire,  160,  162. 

to  govern,  157,  162. 
technical  meaning  of  term,  165. 
See  Colonies. 

TRIALS,  new.    See  New  Tbials. 
TRIBUNEAUX   administratifs,  195. 

UNCONSTITUTIONALITY.    See  Judicial  Ponver;    Legislatube. 
UNITED  STATES, 

administration,  good,  the  weak  point  in  government  of,  131. 
advisory  opinions  in,  43,  53,  182,  185. 
Bank  of,  constitutionality  of,  10. 

United  States  a  stockholder  in,  88. 
citizens  of,  162,  163. 

Indians  as,  162. 

inhabitants  of  newly  acquired  possessions  as,  162. 

inhabitants  of  "  territories  "  as,  173. 
colonial  power,  a,  165,  177. 

duty  of,  as,  179. 
Constitution  of, 

amendments  to.     See  Amendments. 

character  of,  4,  104,  158,  198. 

colonial  charters,  natural  successor  to,  3,  198. 

conventions  of,  204. 

customs  and  laws  of  nations,  to  be  read  side  by  side  with, 
173. 

express  and  implied  powers  under,  82. 

"  follows  the  flag,"  172. 

granted  powers  in,  scope  of,  159. 

implied  powers  in,  82. 

judicial  power  under,  1. 

silence,  sagacious  policy  of,  in,  66,  158. 

spirit  of,  79,  158. 

as  regards  contracts,  82. 
26 


402  INDEX 

UNITED    STATES  —  continued. 

territories,  new  and  old,  operation  of,  in,  171-178. 
wrecks  of,  158. 
See  Judicial  Power. 
courts  of,  jurisdiction  of,  144. 

destiny  of,  change  in,  wrought  by  Spanisli  war,  155. 
sovereign  power  of,  160. 

colonies,  in  acquisition  and  government  of,  162. 
UNIVERSITIES,  teaching  of  English  law  at,  367-387. 

VERMONT, 

advisory  opinions  in,  54. 

early  opinion   in,  concerning  judicial   jxjwer   under  Constitu- 
tion. 5,  6. 

VINOGRADOFF,  Professor,  discovery  of  Braoton's  "Note  Book" 

by,  357. 
VIRGINIA,  Indians  in,  107. 

WAGER  OF   LAW,  364. 
WAYMOUTH  quoted,  98. 
WEBSTER  quoted,  24,  69,  84,  85,  203. 
WELSH,  Mr.  Herbert,  quoted,  137. 
WESTBURY,  Lord  Chancellor,  quoted,  370. 
WHITTIER  quoted,  100. 
WILSON  quoted,  18,  162. 
WITCHCRAFT.    See  Jubt. 
WITCHES. 

trial  of  Renfrewshire,  341. 
Salem,  330. 
Suffolk,  330. 
WITNESSES, 

attesting,  312. 
competency  of,  310. 

Bentham's  attacks  on  rules  as  to,  311. 
England,  legislation  as  to,  in,  323. 
Massachusetts,  legal  history  as  regards,  in.  310-324. 
Indians  as,  315. 
Quakers  as,  313. 
treason  or  felony,  in  trials  for,  not  sworn,  318,  322,  332. 

WORDSWORTH  quoted,  182. 
YEAR  BOOKS,  364,  375,  377. 


University  of  Toronto 
Library 


DO  NOT 

REMOVE 

THE 

CARD 

FROM 

THIS 

POCKET 


Acme  Library  Card  Pocket 

Under  Pat.  "Rel.  Indei  Ftie 
Made  by  LIBRARY  BUREAU