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Full text of "Legal essays"

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 con stitutions 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,_Broyid ing 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 ca me w e 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 limi tations of these ch ar- 
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 
Qro wn, by ju dicial 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 norma l 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 superi or right, jjid,^uthority of JMs gQ-YejamgPf were 
fundamental here ^^ and fully re cognized; 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 up on the co lo- 
jlial-legislartures^were^nforced by the English court of las t 
resort, so might they be enforced throu gh the colon ial 
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 o wn h ome 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 t his new application ..o f 
judi cial 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] t hat the judges would 
have the right to disregard unconstitut ional laws anyw ay. — 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-m inations of ti me, 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 - 
l ished in 1795,^ the auth or ar gues 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-e re 
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 w here 
i ^iad no op eration. 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 
ju diciary c ould 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 an y 
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 disput ed 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£^^ 
constitu tional law-makers must b e 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 prelimin ary. 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." KendaIL t?. 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 wa s_ifiiiewed in 1816. Only after three 
years from that did the question of its constitutionality 
co me to decisio n in the Supreme Court of t he United Stat es. 
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, 
/ YJtall y ch ange, 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 judi cial on e. 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 refusi n g to 
consider the m 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 " i t is a constitution we ar e 
expounding," these literal precepts about the nature of the 
judicial tasE have been accompanied by a rule of adminis - 
tration wh ich_Jias---teBd«4r--*ft-- comp e t e nt - 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 ha d only a delegated and limit ed 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 bejn terpre ted 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 sup rem e 
law, and it was for the judges to declare and apply it ; 
what wagrsuhordi natei' 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 p ut it thai, court s were simply to loo k 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^Q py'^ with the same se vere 
line of t^jg niTnen t.,^ 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[r itten limitations upon the legislature; these IhafVM/ 
control all repugnant legislative Acts ; such Acts are no t |y\tdtU< 
law; this thcorv 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 
const itut ion, or else t hat 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, t ook no notice of the remark able 
peculiarities of th e 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 li ke 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, t hat an Act of the Legislature is not to be declared void 
unless the violation of the constitution is so manifest as to leave n o 
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 
d anger of the judiciary prev enti ng the operation of laws whic h 
might produce much ju blic g ood." 

In the Federal convention of 1787, while the power of 
dec lar ing 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 con stitutional operation of a 
statute. Tliis- violation. o£ji. -consti tutional rig JtXxHiglit 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 co n- 
s titution being with the legislatur e." 

» 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 unconstitutio nal 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 cou n- 
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 i nsenaihle of tlip higrh deference dua 
to legislative authority . I t is supreme in all cases where it is no t 
restrained by the constitu tion ; 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. Th e validity of the law ought not then to be questione d 
unless it is so obviously repugnant to the constitution that when 
pointed out by the judges^ all mtp n ftf fipngp ""'i T-oflo^figi^ in iVio 
community may perceive the repugna ncy. 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 di s- 
regard the Act w hen those who have the right to make 
laws hav( ^ Tjftt mpT-ply mflTdp q, mistake,, but havje^ made a 
vpr y 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 ran ge ^f^ choice and judg- 
mentj.„ that in s ii^h ca . sps thp nnnf ititntinTi does not jmpose 
upon_the legislature any one specific opi nion^, 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 ag qinat a 
measure as Jjeino;^ in his judgmen t, 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 Act s, 
he said, require for, th eir passage at lea st a ma jo ritv of -the 
legislature, and the reasons ag ainst the validity of the A ct 
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 celebrate d op inion 
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 th e 
court is_ sustainin gan_Act , and finds it to he constitiitjonal^ 
in its own opinion, it is fi.t that thi s sho uld be said, and 
tliat-snch n dprlaratioii-a& all that the case calls for; it 
disposes of the matt er. 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 judici al 
duty no w i n qii estion 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 introduce d for th e 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 judi cial 
function atjLll,_andJ;he opinions thus gi ven hav e 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 St atelegisl ature pa sses a 
l aw which is impeached in the due course of litigatio n 
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 
departm ent. 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, t he judicia ry 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 corre ct 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 
and j3utting down of legislativ e power, by numerous detailed 
prohibitions in the constitution, cannot De accompli shecl 
without m aking the g^overnm ent petty and incompetent . 
This process has already b^en carried much t oo fa r in 
some of our States. TTnd*^^ ^^^ syst em can the powe r 
of courts g O_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 : ' aunt, see 
what has been done to me,' instead of ' 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. 



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