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iSmANA UNIVERSITY
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Contributions to Knowledge made by Instruc-
tors and Advanced Students of
• the University

VOLUME XIII

Nos. 69-73, January, 1926, to December, 1926

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Jlubltsbeb bg lb* Intoraitg

The University Studies constitute a series of University publications,
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Table of Contents

VOLUME XIII

69. Introduction to Anglo-American Law. Covering Briefly Legal Philoso-

phy, Legal History, Legal Biography, Legal Bibliography. By
Hugh Evander Willis, A.M., LL.M., LL.D., Professor of Law,
Indiana University.

70. The Present Status of Integral Equations. By Harold Thayer Davis,

Ph.D., Assistant Professor of Mathematics, Indiana University.

71. Early References to Storm and Stress in German Literature. By Edwin

H. Zeydel, Ph.D., Associate Professor of German, University of
Cincinnati.

72. The Transformation of Bottom. By John Robert Moore, Ph.D., As-

sociate Professor of English, Indiana University.

73. Comparative Morphology of the Oriental Maydeae. By Paul Weather-

wax, Ph.D., Associate Professor of Botany, Indiana University.

VOL. XIII Mabch, 1926

INDIANA UNIVERSITY

Studies

Study No. 69

INTRODUCTION TO ANGLO-AMERICAN LAW. COVER-
ING Briefly Legal Philosophy, Legal History, Legal
Biography, Legal Bibliography. By Hugh Evander
Willis, A.M., LL.M., LL.D., Professor of Law in In-
diana University.

For Sale by the University Bookstore, Bloomington, Ind., Price, 75 cents

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Entered as second-class matter, June 14, 1918, at the post-office at Bloomington,
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sity, from the University Office, Bloomington, Ind.

Indiana University Studies
Vol. XIII

March, 1926

Study No. 69

INTRODUCTION TO ANGLO-AMERICAN LAW. Cover-
ing Briefly Legal Philosophy, Legal History, Legal
Biography, Legal Bibliography. By Hugh Evander
Willis, A.M., LL.M., LL.D., Professor of Law in In-
diana University.

Copyright, 1926
by

Hugh Evander Willis

Table of Contents

PART ONE

SOME FUNDAMENTAL LEGAL CONCEPTS

Chapter Page

I. -Law 7

II. Social Control, Social Interests, and Legal Capacities 13

III. Rights — In General 18

IV. Specific Rights 22

V. Privileges, Powers, and Immunities . 37

VI. Legal Redress 40

VII. Sources and Forms of Law 55

PART TWO

HISTORICAL DEVELOPMENT OF ANGLO-AMERICAN LAW

VIII. Introduction 61

IX. Archaic Period (Anglo-Saxons) . 64

X. Archaic Period (Normans and First Plantagenets) 71

XI. Strict Period 87

XII. Period of Equity 105

XIII. Period of Maturity 116

XIV. Period of Socialization 124

PART THREE

SHORT BIOGRAPHIES OF SOME GREAT
ANGLO-AMERICAN LAWYERS

XV. Great Lawyers of England 137

XVI. Great Lawyers of the United States 163

PART FOUR

LAW BOOKS AND THEIR USE

XVII. Law Books 183

XVIII. The Use of Law Books 207

XIX. Reading Reported Cases and Statutes and Abstracting Reported

Cases 223

XX. Brief Making 229

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PART ONE

SOME FUNDAMENTAL LEGAL CONCEPTS

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Introduction to Anglo-American Law

By

Hugh Evander Willis1 2

CHAPTER I
LAW

Law Defined. There is no more important and funda-
mental legal concept than that of “law” itself. For this rea-
son, before discussing any of the more specific legal concepts,
we shall first discuss this general legal concept. What is the
meaning of “law”? How should the term “law” be defined?

There have been a great many definitions of “law”. Prob-
ably the best known definition is that of Blackstone. Black-
stone's definition once had great vogue, but it is now generally
repudiated. Blackstone said that law, in its most general and
comprehensive sense, “is that rule of action which is pre-
scribed by some superior and which the inferior is bound to
obey”.3 Civil law he defined as “a rule of civil conduct pre-
scribed by the supreme power in the state, commanding what
is right and prohibiting what is wrong”.4 Blackstone’s defini-
tion includes two notions: (1) that of a “superior”, and (2)
that of a “command”. Both of these notions are incorrect.
Law is not something prescribed by a superior to an inferior.
If it were, not only would it not include international law,5

1 Professor of law in Indiana University.

2 Pound, “Interests of Personality”, 28 Hai'v. L. Rev. 343, 445 ; 3 Dunster House
Papers, 3-4 ; History and System of the Common Law ; The Spirit of the Common Law ;
Introduction to Philosophy of Law; Interpretations of Legal History; I Lib. Am. Lato
and Prac. 1, 8 ; Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning”, 23 Yale L. Jour. 16, 26 Yale L. Jour . 710 ; also 11 Mich. L. Rev. 537 ;
Corbin, “Legal Analysis and Terminology”, 29 Yale L. Jour. 163 ; Kocourek, 15 III. L.
Rev. 24, 347 ; 20 Col. L. Rev. 394 ; 68 Pa. L. Rev. 322 ; 19 Mich. L. Rev. 47 ; 30 Yale
L. Jour. 215 ; Goble, 4 III. L. Q. 94 ; 5 III. L. Q. 36 ; Wilson, The State, 610-635 ; Amos,
Science of Jurisprudence; Holland, Jurisprudence ; Gray, Nature and Sources of Law;
Salmond, Jurisprudence ; Pollock, First Book of Jurisprudence.

3 1 Blackstone Commentaries, 38.

4 1 Blackstone Commentaries , 44.

5 Clark, Practical Jurisprudence, 134, 172, 186, 187.

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8

Indiana University Studies

which might be forgiven in view of the present status of
international law, but it also would not include constitutional
law and all other law adopted by the people of a country, as
in the United States, for their own control; and no one can
contend that these are not law. Hence the proper conclusion
is that Blackstone’s definition is wrong in this respect. Law
is not a command. Austin, who followed Blackstone’s defini-
tion when he said positive law “is set by a monarch or sov-
ereign member, to a person or persons in a state of subjection
to its author”,6 had difficulty in fitting his definition to “laws
explaining the import of existing positive laws, and the laws
abrogating or repealing existing positive law”. But Austin’s
difficulty does not stop here. The notion of a command does
not generally prevail anywhere in the law. In the realm of
civil law clearly the law is not issuing commands. It does
not command people not to commit torts, nor to perform their
promises, except in a few rare cases. The state has police-
men, judges, and other officers of the law, but they are not
ordinarily commanding people what to do and what not to
do. If people do not do what they legally ought to do they
may in the course of time feel the strong arm of the state,
but that is a different thing from a command. In the realm
of criminal law, the law might very easily have proceeded by
way of issuing commands, yet even here it did not do so but
followed the same scheme which it followed in the case of
civil law. Leon Duguit was right when he said, “Law is not
the command of a sovereign state, but a by-law governing a
group.”7 Hence Blackstone’s definition is incorrect in both
respects.

Other definitions of “law” worthy of mention are the fol-
lowing :

Law is that part of the established thought and habit which has
been accorded general acceptance, and which is backed and sanctioned by
the force and authority of the regularly constituted government of the
body politic. Wilson.

The science of law is that organized body of knowledge that has to
do with the administration of justice by public or regular tribunals in
accordance with principles or rules of general character and more or
less uniform application. Pound.

On the whole the safest definition of law in the lawyer’s sense

6 1 Austin, Province of Jurisprudence, 2.

7 32 Yale L. Jour. 425. See also Dillon, Laiv and Jur. of Eng. and Am. 10.

Willis: Anglo-American Law

9

appears to be a rule of conduct binding on the members of the common-
wealth as such. Pollock.

The law may be taken for every purpose, save that of strictly
philosophical inquiry, to be the sum of rules administered by courts
of justice. Pollock and Maitland.

Law is a rule of conduct obtaining among a class of human beings
and sanctioned by human displeasure. Clark.

Law is a general rule of external human action enforced by a
sovereign political authority. Holland.

The law of the state or of any organized body of men is composed
of the rules which the courts, that is, the judicial organs of that body,
lay down for the determination of legal rights and duties. Gray.

It will be noted at once that the above definitions do not ap-
parently agree. Is this because they have not all been re-
duced to the same lowest terms? Or is the apparent
disagreement real? In order to answer this question it will
be best to make an independent study of the subject of a cor-
rect definition of “law”, and the best way to make such a
study is to study the phenomena of the law. After such a
study we may know what are the principal notions or con-
cepts embraced in the law; and then by combining these we
may be able to frame a general definition of law. In this way
we shall try at least to make our definition conform to the
facts instead of to make the facts conform to our definition.

The phenomena of the law are a form, or device, for exter-
nal human social control; certain growing social interests
which mark the boundaries of this control; legal rights,
powers, privileges, and immunities (or capacities of influ-
ence), recognized by the law as one means of securing and
protecting such social interests, and classified and studied as
contracts, torts, crimes, property, equity, negotiable instru-
ments, sales, public callings, constitutional law, damages, etc. ;
and courts and legal procedure (including pleading, evidence,
and practice) another means given by the law for the pro-
tection of such social interests.

One of the phenomena of the law is contracts. Let us ex-
amine this for the purpose of discovering the true nature and
scope of law. What do we have in a contract? We have a
promise, or set of promises. But there is nothing magical in
a promise. Most promises involve no social control. They
have no legal consequences. But if a promise, or set of prom-
ises, is in such form as to become a contract, they do involve

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Indiana University Studies

legal consequences. The law then begins to exert some con-
trol. It does not “command” people to perform their con-
tract promises any more than it commands them to make
them. Yet it has evolved a scheme for making a promisor,
or promisors, perform their promises. In the first place, it
recognizes that the promisee, or promisees, have a legal right
to the performance of the promises, and that the promisor,
or promisors, are under a correlative legal obligation to per-
form the promises. Why? Because the promise in the form
of a contract is one of such importance that its non-perform-
ance would be likely to have bad social consequences. It
would tend to destroy the general security which is necessary
for a stable and permanent social order, if people could not
depend and rely upon promises of this sort. In other words,
there is a social interest in general security involved in a
contract which the law believes should be protected. In the
second place, if the promisor, or promisors, do not discharge
their legal obligations, but break their promises, the law offers
the facilities of the courts and legal procedure to the man
or men wronged. Sometimes the courts will decree what is
called specific performance, but since it is now too late for
performance at the time promised this is really specific repa-
ration; ordinarily the courts give a judgment for damages as
a substitute for what the promisee, or promisees, would have
got had the promisor, or promisors, carried out their promises,
and render certain assistance to help in the collection of the
damages. These are the characteristics of the law so far as
concerns contracts.

What we have just found to be true in the case of contracts
is true of all the other branches of the law. If we should
go thru all the other branches of substantive law — torts,
crimes, property, agency, domestic relations, equity, sales, pub-
lic callings, trusts, wills, constitutional law, negotiable instru-
ments, corporations, insurance, mortgages, quasi-contracts,
partnerships, suretyship, bankruptcy, conflict of laws, admin-
istrative law, etc. — we would find a scheme for controlling
the conduct of people, where the law recognizes some social
interest, by the recognition in one person of a right or some
other capacity of influencing the conduct of another person
(who thereby is under a corresponding legal duty), and by
making the machinery of the law available for the use of the

Willis: Anglo-American Law

11

injured person if the other person does not discharge his duty.
In other words, the law here has the same characteristics as it
has in contracts.

Thus four concepts stand out as the chief characteristics
of the law:

I. It is a scheme of social control.

II. It is for the protection of social interests.

III. It accomplishes its purpose by the recognition in per-
sons of capacities of influencing the conduct of others.

IV. It affords the machinery of the courts and legal pro-
cedure to help the person with capacity. “Order, through
generality, equality, and certainty, and not compulsion, is the
fundamental characteristic of the law.” A correct definition
of “law” would seem to be one which embraces all of these
concepts and no others. The following, therefore, may be
taken to be a true definition of law in the legal sense : Law is
a scheme of social control, for the protection of social inter-
ests, by means of capacities of influence, backed and sanc-
tioned by the power of the state.8

Justice. Justice may be defined as such an adjustment of
the relations of human beings as to make all discharge all
of their duties and other liabilities and all obtain all of their
rights, privileges, powers, and immunities.9 What these are
depends upon the social interests which society decides should
have protection. Social justice at the present time recog-
nizes more social interests than does legal justice. It
consequently recognizes more rights and duties. It also rec-
ognizes no favored classes and protects groups within nations
and nations as well as individuals. Legal justice has not as
yet gone as far as this, but it is tending in the direction of
social justice. As a matter of fact at the present time the
law does not always give even legal justice. This is because
it is not perfect, especially in the matter of courts and legal

8 It will be observed that Mr. Wilson’s definition comes the nearest to being like
the above definition. Most of the definitions have the concept of a sanction by the
state in the form of courts and legal procedure. Some of them have the concept of
social control. The concept of protection of social interests and the concept of recog-
nition of capacities of influence as a means thereto are implicit in Mr. Wilson and Mr.
Pound’s definitions, but they seem to be ignored by other definitions.

9 “Justice consists in bringing the actions of each into harmony with the actions
of all by a rule of general application instead of by an arbitrary act.’’ — Kant — (Pound).

Justice is “the liberty of each limited only by the like liberties of all.” — Spencer.

“Justice means the satisfaction of everyone’s wants so far as they are not out-
weighed by others’ wants.” — Ward.

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Indiana University Studies

procedure. England is much better in this respect than the
United States, and the United States is probably better in
respect to civil procedure than in respect to criminal pro-
cedure. The law does not always give justice: it is only a
scheme for giving justice. If justice is truly administered
human beings discharge all their duties and other liabilities
and obtain all of their rights, privileges, powers, and im-
munities; if this results, social interests will be protected;
and if social interests are protected, there is social control.
Hence law may be defined, not only as a scheme of social
control as it has been defined above, but as the science (that
is the organized body of knowledge composed of principles,
rules, and standards) which deals with the administration of
justice.10 However, the writer prefers the definition first
above given because it leaves less to inference.

10 “The science of law, that is, that organized body of knowledge that has to do with
the administration of justice by public or regular tribunals in accordance with prin-
ciples or rules of general character and more or less uniform application . . . .” —

Pound, I Lib . Am. Law and Prac. 1.

“Law in the juridical sense is the body of rules (and principles) recognized or
enforced by public or regular tribunals in the administration of justice.” — Pound, I Lib.
Am. Laxv and Prac. 8.

CHAPTER II

SOCIAL CONTROL, SOCIAL INTERESTS, AND LEGAL
CAPACITIES

I. A Scheme of Social Control. From what has been said
above we have learned that law is a scheme of social control.
It is not the simple thing that a “command from a supe-
rior to an inferior” would be. It is a complicated contriv-
ance. It is a connected combination of things. It is a scheme.
It is a scheme of social control. It is not a scheme of indi-
vidual control. The individual is free to control his own
conduct so long as he does not come into legal relations with
his fellow-men. He may choose his own vocation and his own
domicile, and he may regulate his own conduct in a thousand
other ways, without any interference by the law, provided he
alone is concerned. But when his conduct affects the lives
of his fellow-men, there is a possibility of control by the law.
When such control begins will be considered under the next
heading.

II. Social Interests. The law does not attempt to control
all social relations. It controls them only when there is a
social interest which requires such control. Social interests
include the wants of the individual, the state, and the social
group. As human beings come into closer and closer con-
tact with each other their wants, or social interests, grow.
Kant has truly said that if a man was alone in the world, or
on a desert island, he would call nothing “his own”
(proprius) . What is true of external things is true of per-
sonality. A solitary human being would have no social in-
terests. But the more people are thrown into contact with
each other, the more social interests they have. People in
rural districts do not have so many social interests as people
in urban communities. People in small urban communities
do not have so many social interests as people in large cities.
The more complex the social life, the more social interests
there are. In the early history of the world there were not
so many social interests as there are today. In the early
history of our own country there were not so many social
interests as there are today. At first the only social interest
recognized was that in the preservation of the peace. Later

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14

Indiana University Studies

there was a social interest in the maintenance of the status
quo. The latter was a paramount social interest in Greek,
Roman, and English history before the last part of the nine-
teenth century. In modern times numerous social interests
have come to be recognized. When a new social interest shall
be recognized is determined by the people of a state, but they
have to express themselves thru their representatives in the
halls of legislation and their judges on the bench. Hence
the determination of a new social interest is a difficult mat-
ter. Society is made up of many conflicting and overlapping-
groups, like capitalists, laborers, farmers, consumers, pro-
ducers, the learned, the ignorant, and the like. Representa-
tives may be governed by self-interest, and judges may be in-
fluenced by bias and prejudice. Under such circumstances
how can a new social interest be determined? What is the
social interest, for example, in such matters as the tariff,
taxation, child labor, liquor, and drugs? Yet there are many
social interests about the recognition of which there can be
no doubt. In a complex modern world if many social in-
terests were not recognized and protected life would be in-
tolerable ; the human race, thru warfare, degeneracy,
ignorance, and laziness, would soon destroy itself. Law, then,
is a scheme of social control for the protection of those social
interests which society thinks important enough to be pro-
tected.

The following is a classification by Pound of all the social
interests which he thinks that Anglo-American law has rec-
ognized up to the present time r11

A. General security

1. Personality

a. Physical person

(1) Direct injury

(2) Bodily health

(3) Freedom of will

(4) Mental health

( 5 ) N ervou s system

(6) Privacy

b. Honor and reputation

c. Belief and opinion

2. Domestic relations

a. Parental

b. Marital

11 3 Dwnster House Papers, 3-4 ; 28 Harv. L. Rev. 343s 445.

> — Physical existence

— Social existence
— Spiritual existence

Willis: Anglo-American Law

15

3. Substance — Economic existence

a. Property

b. Freedom of industry and contract

c. Promised advantages

d. Advantageous relations

e. Free association

B. Security of social institutions

1. Domestic

2. Religious

3. Political

C. General morals

D. Conservation of social resources

1. Natural resources

2. Dependents and defectives

E. General progress

1. Economic (free invention, trade, property, industry)

2. Political (free criticism and opinion)

3. Cultural (free science, art, learning)

F. Individual life

III. Legal Capacities. The law protects the social inter-
ests named above, not by sending someone out like a police-
man to see that all people respect and care for them, but by
recognizing in persons legal capacities of influencing the con-
duct of others and of requiring the assistance of the courts
for the accomplishment of that result when it becomes neces-
sary.

A legal capacity, or ability, is the capacity, or ability, given
one person, because of some social interest, to control the con-
duct of others, thru the power of the state. Legal capacities
include A. rights, B. privileges, C. powers, and I) . immuni-
ties.12

All of the social interests which society has decided need
protection are protected by means of some legal capacity, and
in no other way; and this is as true in the realm of criminal
law as it is in the realm of civil law. The law gives to the
state certain public rights as it gives to individuals private
rights. The first social interest historically recognized was
that in the preservation of the peace. This social interest
was protected civilly by giving to individuals, first, the right
to personal safety ; and, later, by giving them the right to the
control and society of family and dependents, the right of
property, the rights of freedom of locomotion, reputation,
immunity from fraud, advantages open to the community

}223 Yale L. Jour. 16 ; 26 Yale L. Jour. 710; 29 Yale L. Jour. 169.

16

Indiana University Studies

generally, and finally privacy. This social interest also came
to be protected criminally by giving to the state analogous
public rights. The social interest in the general security of
personality so far as it relates to honor and reputation is
protected civilly by the private right of reputation and crim-
inally by an analogous public right. Some social interests,
like promised advantages, are protected by private rights only.
Other social interests, like general morals and the conserva-
tion of social resources, are for the most part protected by
public rights. Still other social interests are not protected
by rights, but by privileges, powers, or immunities. The so-
cial interest in the freedom of the will is generally protected
by the privilege of avoiding a contract. The economic exist-
ence is often protected by powers and immunities and priv-
ileges as well as by rights. However, the most important
legal capacities are legal rights, and social interests are gen-
erally protected by them. The curricula of our law schools
and most law books are mostly concerned with legal rights.
A scheme of social control which accomplishes its purposes by
means of legal capacities is a roundabout scheme, but since
it is the way of the law it must be considered if we would
understand law.

With the exception of infants, insane persons, and certain
other persons under disability, the law% it is said, has given
to natural persons full legal capacity, that is, they have or
may have all the rights, tho not all the privileges, powers,
and immunities, known to the law. Corporations have only
the legal capacity given to them expressly or impliedly by
their charters of incorporation. A sovereign state has legal
capacity against persons, but persons do not have legal ca-
pacity against it except as it has given its consent.

Correlative with the capacity, or ability, to influence the
conduct of others is the liability to have such conduct in-
fluenced. Thus correlative with every right is a duty; with
every privilege, a no right ; with every power, a no privilege ;
and with every immunity, a no power. Normal adult nat-
ural persons have full legal liability, and this is sometimes
what is meant when it is said that they have full legal ca-
pacity. It has already been pointed out that corporations
do not have full legal capacity. They also do not have full
legal liability. They have incapacities differing from those

Willis: Anglo-American Law

17

of natural persons. They can do only those things which
can be done by an agent. There are certain crimes which
they cannot commit. They are not liable for ultra vires acts,
that is, acts in excess of the legal capacities given them by
their charters. However, coincident with the development
of the notion that corporations are real entities, there is de-
veloping the notion that they should be treated like natural
persons so far as concerns liability; and that the doctrine of
ultra vires is unsound.13 The capacities of agents and the
liabilities of agents and principals for the acts of agents are
limited by the doctrine of the scope of authority. Partners
and the members of other unincorporated organizations have
in the past been treated as individuals, but there is a tend-
ency developing to treat these organizations as legal entities.

13 See articles on this subject by Edwin M. Borchard in Yale L. Jcmr. for 1924-1925
and 1925-1926.

2—36004

CHAPTER IIJ
RIGHTS— IN GENERAL

A. Right. The greatest of the legal capacities is a right.

1. Definition. A legal right is the legal capacity, or abil-
ity, to enforce action or forbearance (performance) by
another. Illustrations of rights are contracts, property, per-
sonal safety, reputation, etc.

A right is one’s affirmative claim against another. Hohfeld.

A right is the legal relation of two where society enforces action
or forbearance for one. Corbin.

A legal right is the capacity residing in one man of controlling, with
the assent and assistance of the state, the action of others. Holland.

The correlative of a right is a duty. A legal duty is the
legal liability to perform some act or forbearance for another.
When a legal duty is in personam it may be called a legal
obligation.

A legal duty is the legal relation where society enforces action or
forbearance by one. Corbin.

A legal duty exists where one is bound to do or not to do some-
thing because of some interest, social, public, or private, which the
law undertakes to maintain through the power of the state invoked in
judicial proceedings. Pound.

2. Elements. The elements of a right are four: a. the
person who has the legal capacity to enforce performance; b.
the person under legal liability to render performance; c. the
conduct (act or forbearance) to which one is entitled and
which the other owes; and d. the object to which such conduct
relates.

a, b. Persons. Persons are those legal entities to which
the law gives legal capacity and liability. Persons are such,
not because human beings, but because of their legal capacities
and legal liabilities. When slavery was recognized, slaves
were not persons, yet they were human beings. Neither all
human beings are persons, nor are all persons human beings.
Human beings sometimes act collectively. Such groups may
be recognized as entities and given legal capacities. Hence
persons are classed as natural persons and artificial (juristic)
persons. Artificial persons are the state, corporations, part-
nerships, and any other organizations (like labor unions) rec-
ognized as legal entities.

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Willis: Anglo-American Law

19

A corporation is an artificial legal entity, or juristic person,
composed of one or more individuals and possessing a person-
ality and legal capacity differing from that of such individuals.

A corporation is an artificial being, invisible, intangible, and exist-
ing only in contemplation of law; being the mere creature of the law
it possesses only those attributes which the charter of its creation con-
fers upon it either expressly or as incidental to its very existence.
Marshall.

The notion once prevailed, and Marshall’s definition em-
bodies the notion, that a corporation is a fiction, but more re-
cently the notion has been growing that a corporation, as well
as a partnership, labor organization, or other group organiza-
tion, has a personality and is as real as an individual.14
Corporations are classed as public, private, and quasi-public.

A partnership is a voluntary association of two or more per-
sons as co-owners for the purpose of carrying on a business
with a view to profit. They may be classified as ordinary
partnerships, limited partnerships, and joint stock companies.

Persons may also be principals or agents.

Agency is a legal relation, founded upon the contract of the parties
or created by law, by virtue of which one party, the agent, is employed
and authorized to represent and act for the other, the principal, in
business dealings with third persons. Mechem.

c. Conduct. The conduct which is the element of a legal
right consists either of some positive act, as in a contract,
or of some negative forbearance, as in the case of rights in
rem. Acts are more liable to produce rights, or to bring
persons into relations with things, than to be the element of
a right, and they therefore will have more extended consid-
eration in another place. For present purposes it is enough
to say that acts may be void, voidable, or valid. A void act
amounts to nothing so far as concerns performance, but it
may have other consequences. A ceremony of marriage be-
tween two persons, one of whom is already married, is a
nullity, but it will constitute the offense of bigamy. A void-
able act is one which a party may perform or not at his
option. Such an act is one promised by an infant. A valid
act is one whose performance is obligatory.

d. Objects. The fourth element of a legal right is an ob-
jector objects. This object, or objects, may be either per-

14 Pollock, First Book of Jurisprudence, 116 ; United Mine Workers v. Coronado Coal
Co., 42 Sup. Ct. 570.

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sonality, or an external thing, or things. Personality is the
object in the natural rights in rem. Things are the objects
in the property rights in rem and in personam . The Roman
law classified things as corporeal and incorporeal. The com-
mon law classifies things as (1) land, or corporeal heredit-
aments, (2) easements, franchises and rents, or incorporeal
hereditaments, both objects of real property ownership, (3)
chattels real (leaseholds and emblements), and (4) chattels
personal, which in turn are classified as (a) corporeal, or in
possession, and (b) incorporeal, or in action — all objects of
personal property ownership. Corporeal chattels are also
classified as animate and inanimate, and incorporeal chattels
as debts, secured and unsecured, and various other intangible
things. Since things are the objects of specific rights, to be
considered hereafter, further discussion of them will be post-
poned until such specific rights are discussed.

3. Classification. The most general classification of rights
is as public and private. These are classified as antecedent
and remedial. Antecedent rights are classified as in rem
and in personam. Remedial rights are all in personam.
Rights in rem and in personam are still further classified.
The following table shows this classification:15

A. Rights

1. Public — Criminal law

Constitutional law
Administrative law
Municipal corporations
International law

2. Private

a. Antecedent rights (primary rights)

(1) In rem

(a)

Personal safety

(6)

Society and control of family and dependents

(c)

Property

(l1) Real

(21) Personal

(d)

Freedom of locomotion

(«)

Reputation

(/)

Immunity from fraud

(9)

Advantages open to community

(h)

Privacy

15 Holland, Jurisprudence,

160 et seq.

Willis: Anglo-American Law

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(2) In 'personam

(a) Contracts

( b ) Quasi-contracts

( c ) Trusts

( d ) Bailments

(e) Public callings

(/) Other fiduciary relations
b. Remedial rights (secondary rights) in personam

( 1 ) Preventive

(a) Injunction

(b) Prohibition

(c) Exemplary damages

(2) Redressive

(а) Restorative

(l1 2) Reformation

(21) Rescission

(31) Specific performance

(41) Ejectment

(51) Replevin

(61) Mandamus

(71) Habeas corpus

(81) Quo warranto

... _ _ f Nominal

(б) Compensatory-Damages j Substantial

(1) Ex contractu
(a1) Debt
(61) Covenant

(c1) Special assumpsit
(d1) General assumpsit

(2) Ex delicto
(a1) Trespass
(b1) Case
(c1) Trover

Direct

Consequential

CHAPTER IV
SPECIFIC RIGHTS

The present chapter is devoted to a definition and discus-
sion of the specific rights classified above.

a. Antecedent rights are rights to conduct for its own
sake, that is, before any wrongdoing, and therefore they may
also be called primary rights.

b. Remedial rights are the rights to judicial remedies to
prevent or to redress violations of antecedent rights, and may
therefore be called secondary rights.

(1) “A right in rem is a right against another particular
individual accompanied by similar rights against all or nearly
all others.” (Corbin.) All legal rights in rem are ante-
cedent. The conduct called for by such rights is negative for-
bearance.

(2) “A right in personam is a right against another par-
ticular individual unaccompanied by similar rights against all
or nearly all others.” (Corbin.) The conduct called for by
such a right is generally a positive act. Some antecedent
legal rights are in personam and all remedial rights are in
personam.

1. Public rights are those which the state asserts for it-
self. Public law includes criminal law, constitutional law,
administrative law, the law of municipal corporations, and
international law.

A crime is a violation of a public antecedent duty in rem.

Constitutional law deals with the framework of govern-
ment, the functions and sovereign powers of its departments
and subdivisions, and the duties of the state towards itself
and its own citizens.

Administrative law deals with such matters as revenue,
army and navy, colonies and dependencies, statistics, regis-
tration, naturalization and granting of charters, sanitation,
poor laws, asylums, coinage, weights and measures, profes-
sions, trade, foreign commerce, public callings, prisons, main-
tenance of order, detection of crime, lighthouses, etc., and
the promotion of the intellectual and moral welfare of the
people.

“Municipal Corporations are bodies politic, created by the

(22)

Wilhs: Anglo-American Law

23

sovereign authority of state or nation, for the primary pur-
poses of carrying on a local and subordinate government.”
SCHOULER.

International law concerns states as legal entities in their
relations with each other. In the past it has had no arbiter
beyond the parties themselves.

2. Private rights are those which reside in natural and
artificial persons in their private capacity. Violations of the
correlative duties are either torts, or breaches of obligations
in personam, like breaches of contract, etc.

Breaches of obligations, torts, and crimes are all legal
wrongs. They are violations of legal duties and obligations.
Some wrongs are crimes only, as for example getting drunk
and being disorderly on the street. Some wrongs are torts
only, as where a person unintentionally collides with another
and injures him. Some wrongs are breaches of contract, or
quasi-contract, or trust, or bailment, or public calling only.
Other wrongs are both crimes and torts, as where one in-
tentionally runs into another and knocks him down. Other
wrongs are both torts and breaches of contract, as where a
railway which has made a contract to carry a passenger safely
is guilty of negligence. In such case the railway is also guilty
of a breach of a public calling obligation. If in such case
the railway had been guilty of an assault and battery by the
act of one of its servants, the same wrong would have been
a crime as well as a tort, breach of contract, and breach of
public calling obligation. Suppose that A, purporting to act
for B as his agent, collects from C a debt which C owes B,
and then refuses to pay the money over to B. The law will
impose an obligation on A to pay the money over. This would
be a quasi-contract. A would be guilty of the tort of fraud
against C, and of the crime of obtaining money under false
pretense against the state, but he would be guilty of neither
a tort, breach of contract, nor any other legal wrong than
breach of quasi-contract against B. A tort is a violation of
a private antecedent duty in rem. There are many different
kinds of torts, and they will be referred to further in con-
nection with the consideration of such duties. A breach of
contract is a violation of a private antecedent obligation in
personam created by law as the result of a promise, or set of
promises, under seal, of record, or in the form of agreement.

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A breach of quasi-contract is a violation of a private ante-
cedent obligation in personam created by law, generally be-
cause of some unjust enrichment. A breach of trust is a
violation of a private antecedent obligation in personam cre-
ated by law where one person holds the legal title to something
in trust for another. A breach of a bailment obligation is a
violation of a private antecedent obligation in personam cre-
ated by law where there is a rightful possession of chattels by
one not the owner. A breach of a public calling obligation is a
violation of a private antecedent obligation in personam cre-
ated by law where there is a business affected with a public
interest, as in the case of a virtual monopoly.

(a) Personal Safety. The right of personal safety is the
right of a person to be exempt from injury and danger of
injury to his person from another’s conduct. It is a private
antecedent legal right in rem. The object of this right is the
physical person. The conduct called for by this right is for-
bearance from attempting to do hurt to a person within reach ;
forbearance from hitting or touching a person intentionally,
recklessly as in rudeness, or in the commission of a crime;
forbearance from wounding or disabling a person by any dan-
gerous substance or animal kept, or by the negligent condition
of premises. All human beings have this right. It is an in-
nate natural right, and is acquired at the moment of birth.
All human beings owe this duty. A violation thereof is called
a tort. The tort is the tort of assault if the injury to the
person is only attempted, the tort of battery if it is actually
inflicted, the tort of negligence if the injury results from the
failure to exercise due care, and the tort of escape of danger-
ous thing if the injury is caused by dangerous instrumentality.
The right of personal safety terminates with death, and it
may be partially waived or temporarily forfeited during life,
but a person cannot completely renounce it in modern times.
The above right and duty were the first known to the law.

(b) Family Rights. The right to the society and control
of family and dependents includes the marital, parental,
tutelary, and dominical family rights. Marital rights are
those incident to the status of marriage. Parental rights are
those incident to the relation of parent and child. Tutelary
rights are those incident to the relation of guardian and ward.
Dominical rights are those which the head of the family has

Willis : Anglo-American Law

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to the services of wife, child, ward, and servants. All of
these rights are private antecedent legal rights in rem so far
as concerns outsiders, but they are also private antecedent
legal rights in 'personam as to the members of different re-
lations. Dominical rights are also proprietary. The object
of these rights is a status or relation. The conduct required
is, in case of the rights in rem, forbearance from depriving a
husband or wife of the society of the other and from being
criminally intimate with a wife and in some states with a
husband; forbearance from interfering with the custody and
control of children and wards ; and forbearance from depriving
the head of the family of the services of the other members ;
and, in the case of the rights in personam, the act of con-
sortium, the wife’s keeping herself from levity and adultery,
the act of support of wife by husband, and in some states
of parent by child and child by parent, and the act of render-
ing service. Each member of the family is entitled to the
conduct described and is under the described duties in per-
sonam, and all men are under the duties in rem. The family
rights are natural rights, and are acquired: the marital, on
marriage; parental, on birth or adoption of child; tutelary,
on appointment. Violation of the duties in personam are not
torts. Damages cannot be recovered therefor. But other
remedies, like legalized self-help, as in buying on another’s
credit, and in chastisement, divorce, and a petition for the
restitution of conjugal relations, are available. Marital
rights terminate with death or divorce; parental with death,
emancipation, full age, marriage, or judicial sentence; tutel-
ary with death, resignation or removal, full age, or marriage.
The family rights and duties were the second recognized by
law.

(c) Property. The right of property was the third his-
torically recognized by law. The right of property is the ca-
pacity given by law to persons to influence the conduct of
others with reference to external objects. It has three grades :
custody, possession, and ownership. Custody is the "mere
physical holding of or physical control over a thing”, as in
the case of something held by a servant. Possession is cus-
tody coupled with the mental element that one is holding for
his own purposes, as in the case of bailment. In custody the
object of the law is to secure the physical person by securing

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the relation of the physical person to an object; in possession,
to secure a certain interest of the possessor in the object.
Ownership is an extension of the idea of possession to use and
disposal. In ownership, “the law secures the owner’s interest
of substance — his economic existence.”

At common law, property is of two kinds: real property
and personal property. The general object of real property
is land. The general object of personal property is chattels.
One may own the chattels themselves, but he cannot own land ;
he may have only an estate or interest therein.

The following is a classification of common law estates and
interests in another’s land, not estates :

Estates :

I. As to quantity of interest

A. Freeholds

1. Of inheritance

a. Fee simple

b. Fee tail

2. Not of inheritance

a. Conventional
(1) Life

b. By operation of law

(1) Curtesy

(2) Dower

B. Less than freeholds

1. Estates for years

2. Estates from year to year

3. Estates at will

4. Estates by sufferance

II. As to time of enjoyment

A . In possession

B. In remainder

C. In reversion

III. As to number of owners

A. Severalty

B. Joint- tenancy

C. Coparceny

D. In common

Interests in another’s land, not estates:

I. Profits

II. Easements

III. Licenses

IV. Covenants running with the land

V. Equitable servitudes

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The following* is a classification of common law :

Chattels:

I. Chattels real

A. Leaseholds

B. Emblements
II. Chattels personal

A. Corporeal

1. Animate

a. Wild animals

b. Domestic animals

2. Inanimate

a. Money

b. Ships and vessels

c. Dead bodies

d. Miscellaneous (furniture, groceries, clothing, etc.)

B. Incorporeal

1. Debts and other claims for money

a. Unsecured

(1) Debts of record

(2) Specialties

(3) Simple contracts

(4) Quasi-contracts

(5) Remedial

(6) Bequests

(7) Stock

(8) Warranties

b. Secured

(1) Liens

(2) Pledges

(3) Mortgages

2. Other contracts

3. Good-will

4. Trademark

5. Copyright

6. Patent

7. Services of servants, children, etc.

(I1) Real property is the right of a person to be allowed
by other persons to possess, use, and dispose of (freehold)
estates in land (corporeal hereditaments), and easements, etc.
(incorporeal hereditaments). It is a private antecedent legal
right in rem. The objects of the right are land (which in-
cludes fructus naturales, some fructus industrials, and fix-
tures), easements, franchises, rents, and heirlooms, etc. The
conduct required is forbearance from interfering with use,
possession, or disposal. Only those persons are entitled to
this sort of a right who have acquired it in some way. It is

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not a natural right. It may be acquired by secondary acquisi-
tion by operation of law in case of descent, adverse posses-
sion, estoppel, accretion, reliction, marriage, and judicial sale,
and by act of the parties in case of public grant, private con-
veyance, and will. After one or more persons have acquired
a right of real property in any one of these ways all other
persons have acquired the duty to give the conduct indicated.
Real property is absolute when one has acquired the exclusive
and unqualified right to possess, use, and dispose of some ob-
ject of ownership. It is qualified when he has anything less.
The duty of course corresponds with the right. Violations of
real property are torts. A violation of possession is a tres-
pass; a violation of riparian use, violation of water rights;
a violation of the right of disposal by false and malicious rep-
resentations, slander of title; a false representation made
knowingly and reasonably relied and acted upon, deceit; fail-
ure to exercise diligence where one should see that harm is
likely to result and it does result, negligence ; flooding the land
of another other than in the natural way by water collected on
his own land, or by changing the course of currents, nuisance ;
causing one’s land to cave in by excavations underneath the
same, removal of subjacent support; causing one’s land to
cave in by excavations close to the boundary, removal of
lateral support; a wrongful and lasting injury to the inheri-
tance by owner of a particular estate, waste. All the rights
of real property may be lost by private grant, judicial sale,
taxation, eminent domain, exercise of the police power, con-
fiscation, accretion, estoppel, and adverse possession. Estates
of inheritance may also be lost by escheat, and easements by
abandonment.

(21) Personal property is the right of a person, either to
the positive acts or to the forbearance of other persons, as
respects any of the external things capable of ownership, ex-
cept such as are the objects of real property. Personal prop-
erty may be absolute or qualified in the same way that real
property may be. It is a private antecedent right in per-
sonam when the conduct is a positive act. The objects of
personal property are chattels real (leaseholds and em-
blements) and chattels personal, which are either corporeal
or incorporeal. Corporeal chattels in turn are either animate
(domestic animals, wild animals), or inanimate (money, ships,

Willis: Anglo-American Law

29

dead bodies, and ordinary articles of merchandise), and in-
corporeal chattels are debts either unsecured (of record, spe-
cialty, simple contract, remedial obligations, bequests, stock,
warranties, etc.), or secured (liens, pledges, mortgages), or
non-debt intangibles (other contracts, good-will, trademark,
copyright, patent) . The conduct, in the case of rights in
rem, is forbearance from interfering with the possession, use,
and disposal of any of the above objects of ownership, and in
the case of rights in personam to do some specific act. All
rights in personam may thus be classed as personal property.
The right of personal property also must be acquired, but
anyone may acquire it either severally or jointly with others.
After so acquired all others, in the case of rights in rem , are
under duty; and particular individuals, in the case of rights
in personam, are under duty. Personal property may be ac-
quired by original acquisition, by occupancy (unowned
things), accession, confusion, intellectual labor (trademarks,
copyrights, and patents), contract, quasi-contract, bailment,
public calling, trust, and remedial obligations; and by sec-
ondary acquisition by act of law by confiscation, succession,
judgment, intestacy, insolvency, marriage, and adverse pos-
session, and by act of the parties by gift, will, assignment,
indorsement, and sale. Violations of personal property are
breaches of contract, quasi-contract, trust, and bailment and
public calling obligations in the case of rights in personam,
and torts in case of rights in rem. The most common torts
are conversion, deceit, infringement of trademark, etc., negli-
gence, nuisance, and trespass. Personal property may be lost
by confiscation, succession, judgment, intestacy, insolvency,
marriage, adverse possession, gift, will, bailment, assignment,
indorsement, sale, taxation, eminent domain, and the exercise
of the police power. Rights in rem may also be lost by occu-
pancy, accession, and confusion, and rights in personam by
discharge, which embraces the happening of conditions, per-
formance, new contract, cancellation and surrender, altera-
tion, breach, release, accord and satisfaction, arbitration and
award, judgment, bankruptcy, statute of limitations, and
change in law.

(d) Locomotion. The right to freedom of locomotion is
the right of a person to go where he pleases so long as he
does not interfere with the coordinate rights of others to do

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the same. It is an antecedent legal right in rem. The object
of this right is personality. The conduct required by it is
forbearance from imposing total restraint upon a person’s
freedom of locomotion except in making lawful arrest. Every
human being has the right, and all human beings are under
duty. The right is a natural innate right and is acquired at
the moment of birth. The violation of it is the tort of false
imprisonment. The right terminates with death, may be for-
feited by wrongdoing, and may be partially waived by con-
tract. It was the fourth right historically recognized by the
law.

(e) Reputation. The right of reputation is the right of a
person not to have diminished in the community his good
name, or the well-founded respect of others for him. It is
an antecedent legal right in rem. It was the fifth historically
recognized by the law. The object of the right is also person-
ality, but honor and reputation instead of the physical person.
The conduct required by it is forbearance from publishing def-
amation which is either actionable per se or not actionable per
se if it causes special damage. Every human being has the
right, and all human beings are under duty. The right is a
natural innate right, acquired at the moment of birth. A
violation of the right is the tort of slander if the defamation
is oral, and the tort of libel if the defamation is in writing,
print, or figure. The right terminates with death, and can
be lost during life only by loss of character.

(f) Immunity from Fraud. The right to immunity from
fraud is the right of a person not to be induced by intentional
false representations to assent to a transaction which causes
him damage. It is a private antecedent legal right in rem.
The object of the right is generally an external thing, and
therefore the same as the object of property. Fraud, conse-
quently, is generally a tort resulting from a violation of a
property duty. But the right to immunity from fraud is
broader than the right of property and hence should have
some separate treatment. The conduct required is forbear-
ance from making a false representation in regard to a mate-
rial fact, with knowledge of its falsity, and with intent that
it shall be acted upon, to one who is ignorant of its falsity and
believes it to be true and who reasonably relies and acts upon
it to his damage. Everyone has a right to such conduct, and

Willis : Anglo-American Law

31

all are under duty to render it. A representation may be
either an inducement to a contract, when — if it is false as
above outlined — it is a tort; or a warranty, which is a con-
tract collateral to another principal contract ; or a promissory
condition, in either of which last two cases (but not if a casual
condition) — if it is false — there is a breach of contract. The
right to immunity from fraud is an innate right, acquired at
the moment of birth, and a violation of it is the tort of deceit,
or fraud. The right terminates with death.

There is no right to immunity from duress and undue in-
fluence, and therefore they are not torts, and yet if a con-
tract is procured by duress, or by undue influence, it is as
voidable as one procured by fraud. Duress and undue influ-
ence, like fraud, create powers and privileges, but they have
no further legal effect. Privileges and powers will be dis-
cussed later.

(g) Advantages Open to Community. The rights to the
advantages open to the community generally include the rights
of persons to perform without molestation all lawful acts
and to enjoy the ^privileges which attach to them as citizens,
and may be classed as the right to livelihood, the right to
highways, the right to freedom from abuse of legal process,
and the right to contract. They are private antecedent legal
rights in rem. The object of these rights is, respectively, oc-
cupation, public highways and rivers, machinery of the law,
and a relation. The conduct also, respectively, is forbearance
from interfering with the pursuit by which a person gains
his livelihood to his damage, forbearance from obstructing the
public highways and navigable rivers to his damage, forbear-
ance from instituting a prosecution with malice and without
reasonable probable cause for an offense falsely charged to
have been committed (to his damage if not defamatory), and
forbearance from procuring breach of contract, or procuring
by force refusal to contract, by a third person to the first’s
damage. These rights are innate and are acquired at the mo-
ment of birth. A violation of the duty to permit contract is
the tort of procuring breach or refusal to contract; of the
duty not to obstruct highways, nuisance; of the duty not to
abuse legal process, malicious prosecution; of the duty not
to interfere with one’s livelihood, unfair competition or some
other well-recognized tort. The rights terminate with death

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and may be waived by contract so far as not against public
policy.

(h) Privacy. The right of privacy has been so recently
established that definition and explanation should not be at-
tempted. It seems at least to include the right of a person
to have others refrain from using his name or picture with-
out his consent for purposes of trade or for advertising pur-
poses. It is a natural innate private antecedent legal right.

(a) Contract. A contract is a legal obligation (private
antecedent legal right in personam), created by the law, as
a result of a promise, or set of promises, under seal, of record,
or in the form of agreement. A contract under seal is one
with a promise, or set of promises in writing, sealed and
delivered. An agreement is the meeting of at least two minds
in the objective sense in one and the same intention by means
of an offer and an acceptance. It is the expression of assent.
An offer is an act giving the offeree the power to create an
agreement by the acceptance of a conditional promise. It
is an act, whereby one party, by proposing to give a promise
to another for a promise or other act of the other, gives the
other by acceptance the power of creating an agreement. It
is a proposal by one person to give or do something for an
act other than a promise or for a promise of another. The
person making an offer exercises a privilege, while the person
making the acceptance also exercises a power. An acceptance
is the creation of an agreement by the expression of assent
to the terms of an offer pursuant to the power given by the
offer. It is the exercise by the offeree of the power given to
him by the offeror to create an agreement by the expression
of assent to the terms of the offer. It is an absolute and un-
conditional accession to the identical terms of the offer, either
by an act other than a promise or by a promise as required
by the offer. The agreement, to give rise to a valid contract,
must be definite and certain; be made by competent parties;
be made with intent to create legal relations ; be free from
mistake, fraud, duress, and undue influence; rest upon suffi-
cient consideration; have a lawful object; and be in the form
required by the law of evidence, where there is any require-
ment. If all these conditions have been met the law will
create a legal right in personam in favor of one or both of
the parties, and a correlative legal obligation upon the other.

Willis : Anglo-American Law

33

The elements and characteristics of the right have already
been considered in connection with personal property of which
it is a species.

Contracts is also a generic term, and there are many
different species of contracts. These species of contracts may
be classified in different ways. Classified according to
the nature of the agreement they are unilateral and bilateral,
and express and inferred. A unilateral contract is one created
by a promise on one side given for an act other than a promise
on the other side. A bilateral contract is one created by a
promise on one side given for a promise on the other side.
An express contract is one all of whose terms have been
expressly assented to. An inferred contract is one in which
either the act of acceptance or some term in the promise is
inferred as a fact. Classified according to the number of par-
ties, contracts are joint, several, and joint and several. Classi-
fied according to formalities, contracts are specialties, written,
and oral. Classified as to performance, contracts are executed
and executory, and executory contracts are conditional and
unconditional. Classified as to validity, contracts are valid,
voidable, void, and unenforcible. Classified as to subject-matter,
contracts are principal and accessory. Principal contracts
include those which affect property rights and those which
affect personal rights. Those affecting property rights are
contracts to convey, to lease, to sell, to make a bailment, to
insure, and to loan. Those affecting personal rights are con-
tracts to marry and for services, as for example as servant,
bailee, public calling, profession, agent, etc. Accessory con-
tracts include suretyship and guaranty, warranty, pledge,
and mortgage.

(b) Quasi-Contracts. A quasi-contract is a legal obliga-
tion (private antecedent legal right in personam) created
by law because of some unjust enrichment or analogous situa-
tion. The law imposes such obligations where a benefit has
been conferred by one upon the other because of request,
fraud, misrepresentation by one in confidential relation, undue
influence, duress, and reliance on an unenforcible contract
or on other legal relations. Other obligations of this sort are
obligations of statute, custom, and record. The obligation
requires restitution or its equivalent.

3—36004

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(c) Trust. A trust is a legal obligation (private ante-
cedent legal right in personam) created by law because one
person holds the legal title to something for the use of an-
other, either where there has been a conveyance, or a de-
claration of trust, in this form, or where equity demands it.

(d) Bailment. A bailment obligation is a legal obligation
(private antecedent legal right in personam) created by law
because of the rightful possession of chattels by one not the
owner. The chief bailment obligations are an obligation to
exercise diligence, varying with the bailment, in caring for the
chattel, and an obligation to deliver the same to the person
rightfully entitled to it.

(e) Public Calling. A public calling obligation is a legal
obligation (private antecedent legal right in personam)
created by law because a business is affected with a public
interest, generally because of virtual monopoly. The public
calling obligations are the obligations to serve all of the class
of service, with reasonably adequate facilities, without dis-
crimination, and for reasonable compensation ; and an obliga-
tion to exercise diligence of some sort.

b. Remedies. Remedial obligations are preventive and
redressive, and redressive obligations are restorative and com-
pensatory.

(b) Damages are a private remedial right in personam to
compensation for the injury caused by the violation of a
private antecedent legal duty in rem or in personam. This
violation of duty is a legal wrong and is the result of a tort,
or a breach of one of the legal obligations. The compensation
is nominal where the purpose is simply to establish a legal
right, and substantial where substitutive redress is given.
Substantial damages are direct and consequential. Direct
damages are substantial, compensatory damages for such
immediate and proximate injuries as necessarily and in-
variably result (general damages), and as result only in
the particular instance (special damages), from a breach of
contract or a tort. Consequential damages are substantial,
compensatory (special) damages for such proximate injuries
as are certain, and, tho not necessary and immediate, in con-
tracts broken, may reasonably be supposed to have been in
the contemplation of the parties at the time of making the
contract as a probable result of the breach of it, and, in torts,

Willis: Anglo-American Law

35

are the proximate consequence of the wrongful act. Damages
are a compensatory redressive remedial obligation.

(a) Other redressive remedies are restorative. The chief
of these are reformation, rescission, specific performance,
ejectment, and replevin. The preventive remedies are injunc-
tion and prohibition. Reformation, rescission, specific per-
formance, and injunction are called equitable remedies because
developed by the courts of equity, or chancery. They are all
private remedial rights in personam i; reformation, to reform
a written contract to make it conform to a valid oral one
where by mutual mistake, or mistake and fraud, the con-
tract has not been correctly reduced to writing; rescission,
to set aside a contract voidable for fraud, misrepresentation,
duress, undue influence, infancy, or insanity; specific per-
formance, to compel the fulfillment of a valid promise where
the remedy for damages is inadequate and the contract is
fair, free, mutual, and capable of being presently executed;
injunction, to restrain the doing of an illegal act where the
remedy for damages would be inadequate; ejectment, to re-
gain the possession of land wrongfully detained; replevin, to
regain the possession of chattels wrongfully detained.

In addition to the above remedies there are some remedies
called extraordinary legal remedies. They are mandamus,
prohibition, quo warranto, and habeas corpus. Mandamus
is like specific performance, except that it is a writ issued in
the name of the state or sovereign and must be directed to
some inferior court, public officer, or corporation, and can be
used to redress only obligations or duties imposed by law.
Prohibition is like injunction, except that it is a writ issued
by a superior court to an inferior court or tribunal to prevent
it from usurping or exceeding its jurisdiction, and not to
private parties. The ancient writ of quo warranto was a
high prerogative writ issued in the name of the king against
anyone who usurped or claimed an office or franchise. The
modern information in the nature of quo warranto — criminal
in form but civil in nature — is presented to a court of com-
petent jurisdiction by the public prosecutor to inquire into
the legality of the claim which a party asserts to an office
or franchise. The writ of habeas corpus is a summary remedy
to relieve against illegal restraint of personal liberty.

The proper action for procuring equitable relief is a bill

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in equity; for obtaining extraordinary legal remedies,
prerogative writs ; for obtaining damages, in the so-called code
states a formless action, called the civil action, and under the
common law procedure either a tort action or a contract action.
The contract actions are covenant, for damages for breach
of a contract under seal; debt, for the recovery of a sum
certain due by simple contract; specialty, record, or statute;
special assumpsit (an action on the case in the nature of
deceit) for the recovery of damages for the breach of an
express contract and breaches of some obligations not con-
tracts imposed by law (public callings, etc.) ; and general
assumpsit (an action on the case in the nature of debt) for
the recovery of damages for the breach of quasi-contracts
and inferred contracts. The tort actions are trespass for the
recovery of damages for direct, forceful injury to person or
possession of property (in the case of property by one not in
possession) ; trespass on the case for damages to personal
property by independent agents of harm, or negligence ; trover
(an action on the case in the nature of detinue) for damages
for the conversion of chattels; case (a residual action in torts
comparable with indebtatus assumpsit in contracts) for the
recovery of damages for slander, libel, nuisance, deceit, waste.

CHAPTER V

PRIVILEGES, POWERS, AND IMMUNITIES

B. Privilege. A legal privilege is the legal capacity (or
ability) to do as one pleases in a certain matter, because he
is under no legal duty to another.

A privilege is one’s relation to another where he may conduct him-
self as he pleases in a certain matter. Corbin.

A privilege is one’s freedom from the right or claim of another.
Hohfeld.

A privilege is an immunity from liability for what but for the
privilege would be a violation of duty. Pound.

Illustrations of privileges are innumerable. A person has
the privilege to go onto his own land, to make or not to make
an offer, to accept or not to accept an offer, to cut short his
vacation, the privilege of self-defense, the privilege against
self-crimination, the privilege of disaffirmance of voidable
contracts, etc.

The correlative of a privilege is no right. No right is the
legal liability to have another do as he pleases, or the in-
capacity to control the conduct of another, in a certain matter.

No right is the legal relation of a person in whose behalf society
enforces nothing of another. Corbin.

For example. A has no right after he has given B the
privilege of going on his land. Strangers have no right to have
the owner not go on his own land.

C. Power. A legal power is the legal capacity (or ability)
to change or create new legal capacities or liabilities for an-
other or others.

A power is the legal relation of one to another where one by his
voluntary act may create new legal relations between them, or between
the other and a third. Corbin.

A power is one’s affirmative control over a given legal relation as
against another. Hohfeld.

For example. An agent has the power to bind his principal ; .
an offeree, the power of rejection and the power of accept-
ance; and an offerer, the power of revocation. Other powers
are power of sale, power of appointment, power of assign-
ment, power appendant, power in gross, power of ratification,
power of disaffirmance, etc.

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The correlative of a power is no privilege. No privilege
is the legal incapacity to do as one pleases, or the legal
liability to have another create new legal capacities or
liabilities for him.

No privilege ... is the legal relation where one may be brought
into new legal relations by the voluntary act of another. Corbin.

For example. An offerer is legally liable to have the offeree
create an agreement for him unless he meanwhile exercises
his power of revocation, and if he has made an offer under
seal, or for consideration, he has no power left in himself. A
principal stands in the same situation to his agent, and an
owner to one to whom he has given a power.

D. Immunity. A legal immunity is the legal capacity (or
ability) to be free from the legal power or control of another.

An immunity is the legal relation where one has no legal power
to affect at least one of the legal relations of another. Corbin.

An immunity is one’s freedom from the legal power or control of
another as regards some legal relation. Hohfeld.

For example. One who has an option, one who is exempt
from taxation, or execution, or one who has a contract whose
obligation cannot be violated, has an immunity.

The correlative of immunity is no power. No power is the
legal liability not to be able, or legal incapacity, to create new
legal capacities or legal liabilities for another.

No power ... is the legal relation where by no voluntary act of
his own one can extinguish an existing legal relation of another. Corbin.

For example. One who has given an option ; a state which
has given a person exemption from taxation, or which desires
to violate the obligation of a contract.

The above legal rights, privileges, powers, and immunities
compose what is called substantive law, as distinguished from
adjective law or legal procedure. Substantive law may be
defined as the law of public and private antecedent and
remedial legal rights, and of legal privileges, powers, and
immunities. It includes all legal capacities and liabilities.

E. Facts: Acquisition and Loss of Capacities and Lia-
bilities. The means whereby persons acquire legal capacities
and liabilities are called facts. Facts are either events or
acts.

An event is an occurrence which takes place independently of human
will. Pound.

Willis: Anglo-American Law 39

An act is an exertion of the human will manifested in the external
world. Pound.

An act is a voluntary physical movement of a human being.
The greater number of acts and events are of no legal im-
port, but almost any act or event is liable to have legal im-
port. An apple falling from a tree on a man’s own land has
no legal import, but if such apple should fall from a branch
projecting over his neighbor’s land on to his neighbor’s ground
it would cause all sorts of legal questions to arise. Proximate
consequences are reckoned as part of an act. When acts have
legal consequences because such was the intention of the per-
sons who performed them and the law gives effect thereto,
they are called legal transactions. Examples of such legal
transactions are contracts, conveyances, and declarations of
trust.

Facts are also operative and evidential. An operative fact
is one which causes new legal capacities or legal liabilities.

An operative fact is one which causes new legal relations. Corbin.

An evidential fact is one which tends to prove the existence of some
other fact. Corbin.

An act may also be an element of a right, a matter already
discussed.

Legal Relation. An important fact is the fact of legal re-
lation. A legal relation is a sort of permanent fact, and there-
fore, either alone or in connection with other operative facts,
gives fairly permanent legal capacities and liabilities.

A legal relation is where stated consequences follow to persons from
operative facts. Corbin.

Some of the most important legal relations are the domestic
relations of parent and child, guardian and ward, master and
servant, and husband and wife; the fiduciary relations of
attorney and client, physician and patient, spiritual advisers
and those advised, and trustee and beneficiary, in addition to
the domestic relations; the contract relations of offerer and
offeree, promisor and promisee, promisor and third party
beneficiary, assignor and assignee, and principal and agent;
the property relations of vendor and vendee, lessor and
lessee, licensor and licensee, donor and donee, bailor and bailee,
and trustee and cestui qui trust; and the relations caused by
wrong-doers in the case of breaches of obligations, torts,
and crimes.

CHAPTER VI
LEGAL REDRESS

IV. Sanctions of State : Exercise and Protection of Legal
Capacities. Legal capacities may be exercised and protected:
either A. thru authorized self-help, or B. by legal redress,
1, administered by the courts, 2, thru the established rules
of legal procedure.

A. Self-Help. In primitive times persons had no other
way of exercising their legal capacities and securing their
rights. But the law has regulated and controlled self-help
more and more, until today it is narrowly limited. The cases
where self-help is available are classed as: 1. self-defense,
which is available both for one’s self and for those stand-
ing in the relation of husband and wife, parent and child,
or master and servant; 2. recaption, which is permitted
anyone who has been deprived of the possession of his chattels
or of the custody of his wife, child, or servant, if accomplished
without a breach of the peace; 3. entry upon land by one
disseised, if peaceably and without force; 4. abatement of
nuisances ; 5. distress of cattle damage feasant, and in a few
jurisdictions still distress for rent.

B. Legal Redress. Today legal capacities are protected
almost entirely by means of legal redress.

1. Courts. A court is “a place wherein justice is judicially
administered”. Again it has been defined as “a tribunal pre-
sided over by one or more judges for the exercise of such jud-
icial power as has been conferred upon it by law”.

a. With respect to their jurisdiction courts are: (1) of

general jurisdiction, and (2) of limited jurisdiction; or (1)
of original jurisdiction (where causes are brought in the
first instance), and (2) appellate jurisdiction (where causes
originate in some other court and are brought to the court in
question for review) ; or (1) exclusive jurisdiction (when
cases can be taken before no other court) and (2) concurrent
(when the plaintiff has a choice).

In order to determine a cause a court must have jurisdic-
tion (1) of the subject-matter (that is, power to determine
the kind of proceeding brought) , and (2) of the person against
whom, or the thing with respect to which it renders judgment

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Wilhs: Anglo-American Law 41

or makes an order. Jurisdiction of the person is acquired
by the service of process, by reading to, or delivering to the
person (or by leaving at his residence), a writ in the name
of the sovereign commanding his appearance in court. Juris-
diction over property is obtained by the seizure of the
property, or by the publication of notice under the provisions
of statutes.

b. In the United States there is a dual system of courts,
state and federal. Over certain matters and persons each
has exclusive jurisdiction; over other matters and persons
they have concurrent jurisdiction. In the state system, in
addition to police courts and courts of justices of the peace,
there are district or circuit courts, of original jurisidiction,
and a supreme court, or appellate court, of appellate jurisdic-
tion ; and in some states an intermediate court. In the
federal system there are a district court, a circuit court of
appeals, and a supreme court. The latter has some original
jurisdiction in addition to appellate jurisdiction. In England
there is only one system. The details of all these systems will
be given more fully in connection with the historical develop-
ment of Anglo-American law which will be considered in
Part II.

2. Legal Procedure. Legal procedure, or adjective law
(because it exists for the sake of substantive law), prescribes
the modes whereby remedial rights may be secured. In those
exceptional cases where the law still permits self-help it points
out the limits within which it may be exercised. In other cases
it announces the steps which must be taken to set in motion
and carry thru to execution the machinery of the law courts.

Legal procedure includes the rules of pleading, the rules
of evidence, and the rules of practice.

a. Pleading. Pleadings are the written allegations as to
claims and defenses in an action in court. Originally these
allegations, or statements, were made orally in open court,
but at the present time practically all pleadings are written.
Pleadings are supposed to be a scheme for the determination
of the issues between the litigants. In Roman law the issues
were determined by the pret or s and then the cases were re-
ferred to judices for trial. In English law today the issues are
frequently determined by a master to whom the case is re-
ferred by the court. But in the United States the determina-

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tion of the issues is practically left in the hands of the trial
attorneys, outside of the courtroom, and they accomplish or
fail to accomplish their purpose by serving pleadings on each
other. The first pleading of the plaintiff in a code state is
usually called a complaint ; the first pleading of the defendant,
the answer, if he desires to raise an issue of fact; or a de-
murrer, if he desires to raise an issue of law ; and to an answer
the plaintiff may make a reply, or a demurrer. At the com-
mon law the first pleading of the plaintiff was called a declara-
tion. This could be met by the defendant by a demurrer
(general or special), or by a plea (either of the general issue
or of common traverse, or of special traverse, or in confession
and avoidance). The plea of the defendant could be met by
the plaintiff by a demurrer (general or special), or by a
replication (by way of traverse or by way of confession and
avoidance). This in turn could be met by the defendant by
a demurrer (general or special), or by a rejoinder (by way
of traverse or by way of confession and avoidance) . The
rejoinder could be met by the plaintiff by a demurrer (general
or special), or by a surrejoinder (by way of traverse or by
way of confession and avoidance). The surrejoinder could be
met by the defendant by a demurrer (general or special), or
by a rebutter (by way of traverse or by way of confession
and avoidance). The rebutter could be met by the plaintiff
by a demurrer (general or special), or by a surrebutter (by
way of traverse). The United States has modified this com-
mon law system of pleading by the adoption of code plead-
ing. England has practically abandoned it. Any pleadings
by attorneys are there now more nearly according to what
would be called notice pleading. The rules of notice pleading
proceed on the theory of giving notice of the opposing claims
of the respective parties, sufficient to apprise them and the
court of the nature thereof. In both issue (common law)
pleading and essential fact (code) pleading the rules proceed
on the theory of requiring a complete allegation of all the
ultimate facts which must be proved at the trial in order to
establish such claims. In other words, in both common law
and code pleading, the pleadings are concerned not so much
with presenting the case to the court for a fair trial as with
testing the knowledge of the substantive law which the at-
torneys of the parties have. This tends to make our legal pro-

Wilhs: Anglo-American Law

43

cedure a game. A client wins or loses according as his
attorney outplays or fails to outplay his opponent, just as the
client in wager of battle lost or won according to the prowess
or lack of prowess of his champion. Equity pleading is the
system which prevailed in England in the High Court of
Chancery and which obtains in this country for the conduct
of equity cases in the federal courts and in those states
where the distinction between common law and equity juris-
dictions is still preserved. Its fundamental principles were
derived from the Roman law.

be Evidence. The term “evidence” represents:

Any knowable fact or group of facts,, not a legal or a logical prin-
ciple, considered with a view to its being offered before a legal tribunal
for the purpose of producing a persuasion, positive or negative, on the
part of the tribunal, as to the truth of a proposition, not of law or of
logic, on which the determination of the tribunal is to be asked.'
WlGMORE.

Evidence, in legal acceptation, includes all the means by which any
alleged matter of fact, the truth of which is submitted to investigation,
is established or disproved. Evidence is the information given by the
respective parties to the tribunal before which the cause is tried upon
which to base its decision upon the issues, or disputed matters of fact.
Green leaf.

Such information may consist either of the statements of
witnesses as to matters of fact which they have observed by
means of their senses, or documents produced and read in
evidence after they have been proved in accordance with the
rules of evidence, or observations made by the tribunal as to
the existence and conditions of things submitted to its inspec-
tion. Proof is the result of evidence. Evidence is the means of
proof. Testimony is the evidence given by living witnesses. Di-
rect evidence is that which tends to prove a fact without the aid
of inference. Circumstantial evidence is that which tends to
prove a fact as a logical inference from the proof of other
facts. Evidence is incompetent when it is not the best evi-
dence, that is, when it shows on its face that there is a higher
grade of evidence whose production has not been excused.
Evidence is irrelevant when it does not bear on the point in
issue. Evidence is immaterial when it would have no effect
if introduced.

c. Practice. Practice includes all the other steps in legal
procedure not included in pleading and evidence. In primitive

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law these were very different from what they are in modern
law. In primitive law the mode of trial was never in the
form of an investigation of the facts. It was arbitrary and
mechanical and generally predicated upon ordeal. Anglo-Saxon
methods of trial were compurgation (wager of law), wit-
nesses, charters, record, ordeal (cold water, hot water, hot
iron, and the morsel). The Normans introduced into Eng-
land two new modes of trial; wager of battle (as mechanical
as the old Anglo-Saxon methods), and trial by jury, which
finally supplanted all other methods and is the present
method of trial of most cases. The jury took its origin in
the inquisition or inquest of the Frankish kings, who borrowed
it from the Roman governors. The Norman dukes brought
it into England at the time of the Conquest. At first it was
used for all purposes for which the king might desire to know
facts within the knowledge of the free men of any locality.
The jury then in their verdict stated what they knew not from
the evidence of others but from personal knowledge and re-
pute in the neighborhood, but by a gradual process of evolu-
tion thru the centuries the jury ceased to be witnesses and
became triers or judges of the facts and became subject to
rules of law in the awarding of damages.

The following account by Professor Edmund M. Morgan
of a hypothetical case involving a student and a policeman
will give the student a bird’s-eye view of the details of practice
and will show him the steps which have to be taken in a civil
case in their order and will show the relationship of pleading
and evidence to the rest of legal procedure.16

Beginning the Action. Suppose that Samuel Student and Peter
Policeman have been engaged in an altercation. Student asserts that
while he was peaceably walking along the street, Policeman without
cause struck him with a club and severely injured him. He retains
Lewis Lawyer to bring action against Policeman. After making as
thorough an investigation as practicable, Lawyer is of the opinion that
Policeman was at fault and ought to respond in damages. If this had
happened under the old common law system in England, Lawyer’s first
task would have been to determine what writ and form of action would
afford the proper remedy. In this instance Lawyer would have gone
or have had Student go to the Chancery Office for a writ in Trespass,

The sheriff would have summoned the defendant Policeman as com-

16 Morgan, Introduction to the Study of Law, 14-18. Published by permission of
Professor Morgan.

Willis: Anglo-American Law

45

mancled in the writ. On the designated day Policeman, let it be sup-
posed, would have appeared and Student would have been there too.
In earlier times these appearances would have been actually made in
open court; and the parties by oral pleading would have reached an
issue. In later times the appearances would have been made by serving
or filing written statements of appearance, and each pleading would have
been written and would have been served or filed at prescribed periods
of time.

If this controversy occurs in New York today, Lawyer is not at
the trouble of going to Chancery. He may start his action without
an application to any court or official. He will first make out a sum-
mons. ... He will cause this summons to be 'served upon the de-
fendant, Policeman, by the sheriff or some indifferent person, who will
make the service by handing to and leaving with Policeman a correct
copy thereof. The complaint may, but need not, be attached to and
served with the summons. If not so attached, the defendant may pro-
cure a copy of it by serving on plaintiff’s attorney a notice of appear-
ance and a demand for such copy. . . . The sheriff or constable

will serve the writ by leaving an attested copy of it with defendant
or at his usual abode.

In some jurisdictions the action is begun by filing with the Clerk
of the Court the complaint and a Praecipe for a Summons. The Prae-
cipe will usually be entitled with the name of the court and county
and with the names of the parties, and will be signed by the plaintiff
or his attorney. The body of it will be substantially as follows :

“The clerk of the District Court will please issue summons in the
above-entitled action returnable according to law” . . .

The clerk of the court will issue a summons according to the re-
quest in the Praecipe, and the proper officer will serve it upon the
defendant.

Raising and Deciding an Issue of Law. When Policeman is served
with the summons, if he is wise, he will retain an attorney. Let it be
assumed that he employs Arthur Andrew. Andrew’s first task will be to
examine the declaration or complaint. If it has not been served with
the summons but [it] is on file in the office of the clerk of the court,
he may inspect it there and make a copy of it; if not on file, he may
secure a copy from plaintiff’s attorney. If after scrutinizing the com-
plaint he is convinced that the facts alleged therein disclose no legal
claim against Policeman, he may desire to challenge its sufficiency. He
will have to make an appearance for Policeman. In some jurisdictions
this is done by filing with the clerk of the court a statement that Peter
Policeman appears by his attorney, Arthur Andrew; in others, by de-
livering to plaintiff’s attorney a notice of such appearance or by serving
on him a pleading in response to the complaint. In attacking the com-
plaint, at common law and under most codes, he will interpose a de-
murrer. In New York and a few other jurisdictions he will make a
motion for judgment dismissing the complaint on the ground that it
does not state facts sufficient to constitute a cause of action. In either
event the case will be brought on for argument before the court without

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a jury. The court will hear argument upon the question whether, assum-
ing all the facts stated in plaintiff’s complaint to be true, defendant
has committed any wrong against plaintiff for which the law will give
him redress in this action. But it will receive no testimony at all; the
decision must be made upon the allegations of the complaint alone. If
the court holds plaintiff’s pleading insufficient, it will order judgment
for defendant unless plaintiff prays and gets leave to amend; if it holds
the pleading sufficient, it will order judgment for plaintiff unless de-
fendant prays and gets leave to interpose a plea or answer. Under
modern codes it is often provided that the order for judgment must
contain such leave. Sometimes, but not often, the court in making its
decision will render an opinion which will be printed in the regular
law reports. If no amendment is made or plea interposed, judgment
will be entered according to the order, unless by the local practice the
order is appealable, and an appeal therefrom is perfected.

Raising an Issue of Fact. If Andrew determines that the complaint
does require an answer on the facts, he will ascertain from Policeman
his version of the occurrence. Let it be assumed that Policeman denies
that he struck Student. After making an appearance for Policeman in
the manner required by the local rules of practice, he will put in a
plea of general issue or an answer of general denial and thus raise
an issue of fact for trial by a jury.

Bringing Issue of Fact on for Trial by Jury. It might be sup-
posed that after the issue between Student and Policeman has thus been
made by the pleadings, it would automatically come before the court and
jury for trial. But not so. In most jurisdictions it might forever lie
undetermined in the absence of further action by one of the parties.
Courts hold a series of sessions, known as terms, periodically. If Stu-
dent’s case is pending in the New York Supreme Court and he wants it
tried, his attorney must, at least fourteen days before the opening of a
term of the court, serve upon Policeman’s attorney a notice stating that
the action will be brought on for trial at that term; he must also at
least twelve days before the opening of the term file with the clerk of
the court a note of issue, which is merely a request to the clerk to put
it on the list of cases which are to be set for trial at that term. . . .

In practially all other jurisdictions some such steps must be taken by
one of the parties.

The foregoing notices and requests merely get the case in its regu-
lar order upon the trial list. It still has to be assigned for trial ac-
cording to the local practice. In some places, on the first day of the
term, the entire list or calendar is called, a determination is made
whether any of them are not ready for trial during the term, and the
cases for trial by jury are separated from those for trial by the court.
After the unready cases are eliminated, the others may be set for trial,
each for a day certain, or all in the order in which they appear on the
list as revised. In other places there is no call of the list, but at
stated intervals a session of the court is held for the purpose of selecting
from it cases for trial during a comparatively short period then next
ensuing. ... In still other places, the selection of cases from the
list is made by subordinate administrative officials of the court.

Willis: Anglo-American Law

47

Trial of the Issues. Assume that the case of Student against
Policeman has been set for trial in Court Room number one immediately
after the case of Jones v. Smith. Both Lawyer and Andrew will have
to be ready to go on immediately at the conclusion of the Jones-Smith
trial. They will be on hand with their respective clients and witnesses.
The court will order the clerk to call the next case; and when he has
said “Samuel Student against Peter Policeman”, and the attorneys have
answered that they are ready, the court will direct the clerk to call
a jury.

Same — Getting the Jury. A juror must possess certain general
and certain special qualifications to be eligible to act in a particular
case. For example, he must usually be an elector of the jurisdiction,
must not be related within a certain degree of consanguinity to either
party and must be in such a state of mind toward the parties and
the case as to be able to try the issue fairly and impartially. For alleged
lack of any of these qualifications he may be challenged by either party,
and if the challenge is found true, he will not be permitted to serve.
Such challenges are termed challenges for cause. In addition by statute
each party may, without assigning any reason therefor, exclude a speci-
fied number of perfectly eligible jurors by peremptory challenge. The
procedure with reference to challenge and to ascertaining and disclosing
the reasons for challenge is not uniform. Among the various practices
are the following: (1) The parties and their attorneys are confronted
with the entire number of jurors summoned for service for the term
and not then engaged in the trial of other causes. The attorneys, either
directly or through the judge, are permitted to ask them as a body
questions touching their qualifications to sit as jurors. If any juror
discloses a probable ground for disqualification, he may be challenged
and further examined; and even extrinsic evidence may be given to
prove his ineligibility. If the challenge is found true, he is eliminated;
otherwise not. After all ineligibles are thus removed, the clerk by lot
selects twelve or twelve plus the number of peremptory challenges al-
lowed, and after the peremptories are exercised or waived, the jury
of twelve is sworn. (2) From among the jurors summoned for the
term, usually called the panel or the array, the clerk selects by lot to
the number of twelve plus the number of peremptories. The attorneys
are allowed, directly or through the judge, to examine each of these
individually as to his qualifications, and to eliminate by challenge for
cause any who show themselves disqualified. If any juror is thus re-
moved, he is replaced by another who is subject to examination as if
originally drawn. After the requisite number of qualified jurors is
obtained, the attorneys exercise their peremptory challenges, and the
remaining twelve are sworn to try the case. (3) In England and
Canada the jurors are selected by lot from the panel. As each juror
comes to the box either attorney may challenge him for cause or
peremptorily. If peremptorily, then no examination is necessary; if for
cause, then he may put questions to the juror or present other evi-
dence to support the challenge. But no questioning of a juror prior
to challenge is allowed. (4) As each juror is chosen by lot by the clerk,
he is examined by the attorneys, in a prescribed order, as to his quali-

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fications. The attorney who first examines must exercise his challenge
for all reasons before turning him over to the other attorney. If he
finds no ground for challenge for cause, and yet desires the juror re-
moved, he must exercise his peremptory challenge at once. When
twelve men have been passed by both attorneys, they are sworn to
try the issues.

Same — Opening Statements. After the jury is sworn, the plaintiff’s
attorney makes his opening statement. In Student against Police-
man, Lawyer will explain to the jurors the exact questions raised by
the pleadings which they will have to answer by their verdict, what
Student asserts to be the facts and how he intends to support these as-
sertions by evidence. In New York, he will be followed immediately
by Andrew, who will outline Policeman’s case and inform the jurors
how he intends to meet and overthrow Student’s claims. There is no
place for argument in the opening. It is made simply to present to
the court and jury an outline of the case, so that they may more
easily and intelligently follow and apply the testimony. In some juris-
dictions Andrew’s opening will not be made until just before he is ready
to offer his evidence.

Same — Evidence. Next Lawyer calls his first witness, who is sworn
to tell the truth and nothing but the truth. By means of question and
answer he gets from the witness what he knows about the matter in
issue. Then Andrew has an opportunity to cross-examine; and if he
brings out any new matter or makes uncertain anything given in testi-
mony on Lawyer’s examination, the latter may re-examine the witness
on these points. And in some instances the witness may be subject to
several re-examinations by each attorney. The same procedure is fol-
lowed with each witness offered in Student’s behalf. Student will doubt-
less be one of them. After presenting all his witnesses on his main
case, Lawyer will announce that he rests, that is, that he has no further
evidence to offer. Thereupon Andrew will proceed with Policeman’s
side of the case. If he has not already done so, he will make his opening
statement. Otherwise, he will at once call his witnesses, who will be
examined, cross-examined, and re-examined as were Student’s witnesses;
after which he will state that he rests. If the course of the evidence
warrants it, Lawyer will have the privilege of presenting evidence in
rebuttal, and Andrew in surrebuttal.

Same — Motions during Trial. At the close of plaintiff’s evidence, the
defendant may under modern practice move that plaintiff be nonsuited
or that the action be dismissed on the ground that no reasonable jury
could find a verdict in favor of plaintiff; and at the close of all the evi-
dence either party may move for a directed verdict on the ground that
no reasonable jury could return a verdict except in favor of the movant.
In some jurisdictions this latter motion may be made at the close of
plaintiff’s testimony. If either motion is granted, it of course puts an
end to the trial.

Same — Requests to Charge. At the close of the testimony either
attorney may present to the judge written requests that he deliver
certain instructions to the jury. These requested instructions will de-
clare that the jurors in considering the testimony must apply certain

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49

rules of law in ascertaining the facts and in determining the effect to
be given to the facts when found. In some jurisdictions the court is
not obliged to give the jury any instructions which are not so requested.
The court will advise the attorneys which of the requested instructions
it will give in order that they may frame their summing-up arguments
accordingly.

Same — Summing-up by Attorneys. These arguments usually come
next, though in some states they follow the charge of the court. Ordi-
narily Lawyer, since Student has the burden of establishing his case,
will open the argument, Andrew will answer him, and Lawyer will reply
in rebuttal. In some jurisdictions Andrew will open the argument and
Lawyer will close, each side having but one speech. In these argu-
ments each attorney will be confined to the evidence and will not be per-
mitted to indulge in prejudicial immaterialities. He will try, by his
analysis of the testimony and of the method of applying it to the is-
sues, to persuade the jury that its verdict should be in his favor.

Same — Charge of the Court. The court will then deliver its charge
to the jury. This is usually done orally; in some places the court is
required to reduce the instructions to writing and let the jury take
them to the jury room. In almost all of the states of the Union, this
charge must not contain any comment upon the weight of the evi-
dence or the credibility of the witnesses, but must be confined to ex-
pounding the rules of law which the jury should apply in reaching their
verdict. In the Federal Courts, in Connecticut and a few other states,
the court may express its opinion upon the weight of the evidence and
the credibility of the witnesses. In England the charge is called the
summing-up by the court and consists of a review and analysis of the
testimony and the opinion of the court on how it should be handled,
as well as a statement of the rules of law governing the case which
are to be applied by the jury.

Same — Verdict. At the conclusion of the charge the court places
the jury in the custody of an officer, who conducts them to the jury
room. In this room they deliberate upon the case in secret until they
reach a verdict. In some places they deliver the verdict orally in court
through their foreman; in others they return a written verdict signed
by the foreman, and express oral assent thereto when it is read in
open court. After the verdict is received by the court, the jury is dis-
charged and the trial is at an end.

Motion in Arrest of Judgment. After the verdict, which may be
assumed to be in Student’s favor, the defendant may move that judg-
ment be arrested on the ground that the declaration or complaint is
fatally defective in wholly failing to state a cause of action. The ques-
tion raised by this motion is the same as that raised by a general
demurrer; but the court’s attitude at this stage of the proceeding is
to resolve every doubt in favor of the pleading, because it is now sup-
ported by the verdict. In determining this motion, the court may render
an opinion which will find its way into the law reports.

Motion for Judgment notwithstanding the Verdict. If the verdict
had been in favor of Policeman, Student might have moved for judg-
ment notwithstanding the verdict, had Policeman’s sole defense been one
4—36004

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in confession and avoidance, on the ground that the facts set up in the
plea or answer were totally insufficient to constitute a justification, ex-
cuse or discharge. Here too the question would be essentially the same
as on a general demurrer to the plea, except that the court would in-
dulge every reasonable presumption to support the pleading. In this
case too the court might render an opinion which would be reported.

Under the codes, a provision is frequently found authorizing the
court after verdict to order judgment notwithstanding the verdict if
upon the evidence it ought to have directed the jury to return a verdict
in favor of the party against whom it was in fact returned.

Motion for New Trial. Under modern practice the defeated party
may usually make a motion for a new trial either before or after judg-
ment has been entered upon the verdict. This motion is usually made
on the ground that the trial court over the objection and exception of
the movant made erroneous rulings during the trial, for example, in
receiving inadmissible evidence, or in giving the jury an improper in-
struction.

Judgment. If the motions made after the rendition of the verdict
are denied, Student will cause judgment to be entered upon the verdict.
The verdict, of course, is merely a finding of the jury. In Student
against Policeman, it will read: “We, the jury, find a verdict in favor
of plaintiff and assess his damages at $5,000.” The judgment is an
order of the court that a party do have certain relief; it will read in
part: “It is ordered and adjudged that plaintiff, Samuel Student, have
and recover of defendant, Peter Policeman, the sum of $5,000 together
with the sum of $75.90 costs and disbursements as taxed, amounting
in all to $5,075.90.”

Review by Appellate Court. When an issue of law has been finally
determined by a trial court upon demurrer, or an issue of fact has been
decided after trial by jury or by the court without a jury, the defeated
party may usually have the proceedings of the trial court reviewed by
a higher tribunal. A record of the proceedings must be made up and
transmitted to the reviewing court according to the rules of local prac-
tice. Everywhere this record must contain a correct statement of so
much of what occurred at the trial as to show the alleged mistakes of
the trial court, the defeated party’s objections and exceptions to them,
and their bearing upon the issues which were tried, and it must be
certified as correct by the trial court. The orthodox method of securing
a review in a common law action is by writ of error; in equity by an
appeal. Under modern codes the usual method is by a statutory ap-
peal. In Student against Policeman, the latter’s remedy will be by writ
of error or statutory appeal. His attorney will generally be required
to take the following steps, though the order of procedure may vary
in different jurisdictions: (1) Notify the court, usually through its
clerk, and opposing counsel of his appeal to the higher tribunal. (2)
Have made up a record — a bill of exceptions or settled case — which he
proposes as an adequate and proper statement of so much of the pro-
ceedings before the trial court as will be pertinent to the matters to
be reviewed; this will be submitted to Lawyer, who will have opportunity

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51

to suggest corrections and additions; and after a hearing, if necessary,
the trial court will certify the record as originally made up or with such
changes as it deems necessary. (3) See to it that this record and the
required original papers are transmitted to the higher court. (4) Pre-
pare a brief, which specifies the errors upon which he relies for re-
versal and the reasons and authorities supporting his contentions; and
furnish the required number of copies of it to the court and to Lawyer.

(5) In some jurisdictions see to it that the case is properly put upon the
calendar of the higher court for argument, and notify Lawyer of it.
Lawyer will prepare a brief in opposition and furnish copies of it to
Andrew and to the court. At the appointed time Andrew and Lawyer
will appear before the higher court and present their oral arguments.
The court will take the case under advisement and later render its de-
cision. A record will be made of all the proceedings in the higher court,
and a portion of that record including the court’s opinion will usually
be printed in the official reports of the court.

In order to help the student still further to understand the
orderly steps of legal procedure they are set forth below in
table form.

Legal procedure comprises the rules

1. For selecting the proper jurisdiction;

2. For ascertaining the proper court;

3. For setting in motion the machinery of the court (procedure
proper)

a. Criminal

(1) Sworn complaint, indictment (or information)

(2) Warrant

(3) Arrest (this may be without warrant sometimes)

(4) Preliminary examination (where no indictment) and bind-
ing over to the grand jury

(5) Bail

(6) Arraignment 4

(7) Plea, or demurrer J ea m^s

(8) Trial

( a ) Empanelling the jury

( b ) Swearing the jury

(c) Opening statement of state’s attorney

( d ) Introduction of evidence by state
Direct examination
Cross-examination

State rests

( e ) Opening statement of defendant’s attorney
(/) Introduction of evidence by defense

Direct examination
Cross-examination
Defendant rests
(g) Requests for instructions

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( h ) Arguments of counsel
Prosecuting attorney
Defense attorney
Prosecuting attorney
(i ) Instructions of the court

(j) Verdict

( k ) New trial. Appeal

(l) Judgment

(m) Sentence.

b. Civil (common law and code)

(1) Procuring writ, or issuance of summons

(2) Filing complaint, or serving complaint (in seme slates
this step comes first)

(3) Service of summons and complaint

(4) Other pleadings, like answer and reply

(5) Notice to clerk

(6) Calling cases

(7) Setting cases

(8) Trial

(a-) Appearance

(6) Empanelling and swearing of jury

(c) Statement of plaintiff’s attorney

(d) Introduction of evidence by plaintiff
Direct examination
Cross-examination

Plaintiff rests

( e ) Statement of defendant’s attorney
(/) Introduction of evidence by defendant

Direct examination
Cross-examination
Defendant rests

( g ) Evidence by plaintiff to meet new matter, etc.

( h ) Requests for instructions (1 Ptf. 2. Def.)

( i ) Argument of attorneys (1. Ptf. 2. Def. 3. Ptf.)

(j) Instructions of court

( k ) Verdict

(l ) Motions, new trial, appeal

(m) Judgment

( n ) Appeal

(o) Judgment

4. For setting in motion the physical force by which judgment of
the court is rendered effectual — execution.

Legal procedure, as it exists under the codes of the United
States, has been set forth above somewhat in detail, not be-
cause it is perfect or necessary to a legal scheme of social
control, or because the writer desires to have it continue, but
because it is the system of the United States. All of these
rules of legal procedure could be changed or abrogated for new

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53

rules, and the only effect would be to require the members
of the legal profession to learn the changes or new rules. The
rules are crude, primitive, and poorly adapted for the end
which they have in view. In contrast with them are the
modern English rules of legal procedure. The procedural field
divides itself into the preparation of cases for trial, the trial
itself, and proceedings for review. So far as the preparation
of cases for trial is concerned in England today the summary
judgment for collection of debts, the declarations of rights
for the construction of deeds, wills, contracts, etc., and the
discovery before a master on a summons for directions have
resulted in the substitution of a judicial tribunal for the
private legal tournament of attorneys, with their efforts for
surprise and their maneuvering for advantage. As a con-
sequence the subject of pleading is not exalted in England as
it is here. In the actual trial of cases the substitution of a
nonpartisan control by judges for the partisan control of trial
attorneys is even more noticeable. The state impanels the
jury, and the judge determines the issues, sums up the case
before the jury, and requires special verdicts. Hence there
is no bickering over rules of evidence. Appeals are conducted
as rehearings, and the appellate court practically always
renders final judgment. As a consequence new trials and re-
versals for technicalities in procedure are practically unknown,
and the rules of practice are very simple. The great char-
acteristic of United States legal procedure is attorney control
of the proceedings. The results are delay, uncertainty, ex-
pense, technicality, and injustice. All of these results are ad-
mitted both by the public in general and by the leaders of the
legal profession.17 In the United States we are not so much
adjudicating cases as litigating legal procedure. Legal pro-
cedure has become an end and is no longer a means. The great
characteristic of English legal procedure is judicial control of
legal proceedings. The result is that the English have de-
veloped a legal procedure which makes the sanction of the
state a real protection of legal capacities and law a real scheme
of social control.18 Perhaps it is not too much to hope that

17 American Bar Association Report, Vo 1. X, p. 317ft, ; 12 III. L. Rev. 540.

18 A recent brief but adequate account (“Appraisal”) of the modern English system
of English legal procedure by Edson R. Sunderland is published in 11 Am. Bar Assn.
Jour. 773, and 9 Jour. Am. Jud. Soc. 164. See also Chief Justice Taft’s report on
the English system, 6 Jour. Am. Jud. Soc. 42-45, and 8 Am. Bar. Assn. Jour. 601 ; Dodge,
“Employment of Masters”, 9 Jour . Am. Jud. Soc. 177; Higgins’ report on English

54 Indiana University Studies

some day legal procedure in the United States will be reformed
so as to make it a real instrument for the administration of
justice, and not what it is today — the rules for a game to
be played by trial attorneys.

Other forms of civil procedure are equity procedure, probate
procedure, and commission procedure. Each one of these
forms of procedure differs from the other, and all differ
from common law and code procedure. No extended explana-
tion of these different forms of procedure will be undertaken.
In equity procedure the system of pleading is different from
common law or code and there are many other peculiarities.
The difference between equity procedure and common law
procedure is greater than that between equity procedure and
code procedure. Many of the characteristics of equity pro-
cedure have been incorporated into code procedure. In probate
procedure there is ordinarily no pleading but in lieu thereof
a petition. The practice also differs materially from other
forms of practice, and for the most part consists of a succes-
sion of petitions, motions, orders, and decrees, with the con-
sequent hearings and introduction of evidence. Commis-
sion procedure in the United States is also very different from
the other forms of procedure which exist in the United States.
In general it may be said to resemble the modern English
common law procedure more than any other form of pro-
cedure, both as to the matter of pleading and as to the con-
trol of the members of the commission over the conduct of
the trials. One reason for the difference between common
law and code procedure and the other forms of legal procedure
in the United States is the absence of jury trials in the latter.
Anyone practicing law before an equity court, or a probate
court, or before a commission especially, should remember that
a different system of legal procedure obtains in them from
that with which he may be familiar in other courts. Still an-
other form of procedure, arbitration procedure, is growing
up in this country. It has not yet taken its final form, but it
gives evidence of a tendency to become much like commission
procedure.

courts and procedure, 7 Jour. Am. Jud. Soc. No. 6 ; Kale, “The English Judicature Acts”,
4 Jour. Am. Jud. Soc. No. 5 ; Rosenbaum, The Rule-Making Poiver in the English Su-
preme Court; and Sunderland, “English Struggle for Procedural Reform”, 39 Harv. L.
Rev. 725.

CHAPTER VII

SOURCES AND FORMS OF LAW

The sources, or formulating agencies, by which legal rules,
principles, and standards have been formulated have been
classed by Roscoe Pound as: A usage, B religion, C ad-
judication, D scientific discussion, E the general moral
sense of the community, and F legislation; and the forms
of the law as: A legislation, B judicial decisions, and
C books of authority.

A. Legislation. There are three forms of legislation in the
United States: constitutions, federal treaties, and federal and
state statutes.

B. Judicial decisions are embodied in the common law,
equity, canon law, and the law merchant.

1. Common Law. The common law is that body of law de-
veloped by the common law courts of England, of which thru-
out most of English legal history the courts of original juris-
diction were the King’s Bench, the Common Pleas, and the
Exchequer, and the courts of appellate jurisdiction were the
King’s Bench, Exchequer Chamber, and Plouse of Lords.
These courts made the common law a well-defined strong sys-
tem of law, strong enough to withstand the Roman law, by
regarding their past decisions not merely as decisions of the
particular causes before the court but as solemn ascertain-
ments of the law as well. In the United States until the
middle of the eighteenth century, justice was administered
mostly by executive officers and legislative assemblies with
little or no other law than common sense, the light of nature,
and Hebrew law ; and for some time after the Revolution there
was antipathy towards English law, but economic develop-
ment and the study of Blackstone finally led to its establish-
ment as the law of America. The common law of the United
States now consists of the decisions of the old English courts
(generally prior to the Revolution)19 so far as applicable to
conditions here, American judicial decisions since the Revolu-
tion, judicial decisions in England and other common law
countries since the Revolution, the law merchant, the canon

19 Indiana, prior to 1607.

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law so far as it was received into the English Ecclesiastical
Courts in probate and divorce causes, international law so far
as made a part of our municipal law, and English statutes
prior to the Revolution so far as applicable to conditions in
America.

2. Equity. Equity is that body of law developed by the
Courts of Equity (or Chancery) in England and the United
States. The Court of Chancery developed in England, out of
the residuary power of the king to do justice which had been
delegated to the common law courts, for the purpose of cor-
recting the formal character of the rules of the common law
as to property in land, the rigidity of its system of writs and
actions, the defect that it could not command, the defect that
it must have one party on each side and only two sides, the
defect that its jurisdiction was contentious and not preven-
tive, and the defect that it had no power to make a conditional
judgment. The chancellors did not confine themselves to any
special field, but corrected abuses both in substantive law and
procedure wherever they found them. They found the great-
est abuse in the substantive law of remedies and corrected
this. Hence they made equity essentially a law of remedies.
Their principal contributions to substantive law are the doc-
trines of trusts and equitable servitudes in property, specific
performance, reformation, rescission, accounting and assign-
ment in contracts, equitable waste and prevention of torts
in torts, redemption in mortgages, and constructive trusts in
quasi-contracts ; and their principal contributions to legal pro-
cedure are rules as to joinder of parties and actions, deposi-
tions, proceedings in personam , subpoena of witnesses, inter-
pleader, discovery, enforcement of decrees, contempt, and
methods of taking an account, etc.

3. Law Merchant. The law merchant is that body of law
developed by the merchants in their own local courts. The
merchants of western Europe at one time had a body of com-
mercial usage of their own. The ordinary law was not ap-
plied between merchant and merchant. They were in a class
by themselves, and were governed by the law applied by their
own special tribunals. But largely thru the influence of Lord
Mansfield the common law courts gradually supplanted these
merchants’ courts by summoning juries of merchants to in-

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57

form them of the customs of the merchants and converting
the custom of merchants into a custom of decision in mercan-
tile causes, and after once determined a precedent to be fol-
lowed as much as any other judicial precedent. The chief
contributions of the law merchant to our law are the law of
negotiable instruments and the law of insurance. But in mod-
ern times merchants have contributed a number of principles
to the law of bills of lading and warehouse receipts, thru usage
and scientific discussion.

4. Canon Law. The canon law is that body of law admin-
istered by the church in the Middle Ages. It was largely de-
rived from the Roman law. It was to a considerable extent
incorporated into the law of equity both in the matter of sub-
stantive law and legal procedure, because of the fact that most
of the early chancellors were ecclesiastics. It also contributed
most of our law of probate and divorce, since the Ecclesiastical
Courts in England retained this jurisdiction until most of its
principles were settled. The mode of proof — examination of
adversary under oath and examination of witnesses before trial
— which canon law contributed to equity, was not derived from
Roman law but developed by itself.

C. Books of Authority. In Anglo-American law, contrary
to the fact in other systems of law, there are few books of
authority. Littleton’s treatise on tenures and Coke’s state-
ment of the common law of the classical period in which he
lived, which is found in his Commentaries on Littleton , are
authorities upon the subjects on which they treat as to the
law of those times. The books of Glanvil, Fleta, Br acton, and
Sir Mathew Hale are also sometimes spoken of as authority,
and Blackstone’s Commentaries and Kent’s Commentaries.

PART TWO

HISTORICAL DEVELOPMENT OF ANGLO-
AMERICAN LAW

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CHAPTER VIII
INTRODUCTION

In approaching the study of Anglo-American law from the
historical standpoint,20 one discovers first a period of no law.
In this period every man, or at least the head of the family,
was a law unto himself. Undoubtedly in this period there
were certain forms of conduct which were generally regarded
as wrongful, but there was no means of redress therefor other
than vengeance and self-help, and unregulated vengeance and
self-help were liable to cause as many wrongs as they pre-
vented. The result was a state of society where private war-
fare was the usual order. Under such conditions human prog-
ress was practically impossible, and the immediate predicament
of the race was unendurable. To the credit of the race it
may be said that it has evolved one plan after another to
improve its condition, until the present social order has been
reached, and it probably will continue to plan for its improve-
ment until new and better social orders appear.

In English history the boundaries of this period of no
law are unknown. It began at least back as far as Neolithic
men (Iberians) and Palaeolithic men (Eskimos) and it prob-
ably continued down thru the times of the Celts and Britons,
Gauls and Belgians (Goidels), and perhaps thru the times of
the Jutes, Saxons, and Angles (who together became the
English), 449-584. But whatever were the boundaries of the
period of no law and whatever other legal development may
have occurred in England, the period of the Roman occupancy
(55 B.C. to 410 A.D.) will have to be counted out. During
a part of the time of the Roman occupancy of Britain, if not
thru most of it, the Roman law was applied. This was not

20 Pound, “The End of Law as Developed in Legal Rules and Doctrines, and in
Juristic Thought”, 27 Harv. L. Rev. 195, 605, and 30 Harv. L. Rev. 201 ; Select Essays
in Anglo-American Legal History; Pollock and Maitland, History of English Latv ;
Maitland and Montague, Sketch of English Legal History; Dean, The Student's Legal
History; Jenks, Short History of English Law; Holdsworth, History of English Laiv ;
Walsh, History of English and American Law; Ames, Lectures on Legal History;
Holmes, The Common Law; Plucknett, Statutes and their Interpretation in the Four-
teenth Century; Langdell, Equity Pleading; Spence, Equitable Jurisdiction; Digby, His-
tory of the Law of Real Property; Leake, Law of Property in Land; Thayer, Pre-
liminary Treatise on Evidence; Street, Foundations of Legal Liability; Taylor, Origin
and Growth of the English Constitution ; Stubbs, Select Charters Illustrative of English
Constitutional History.

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the Roman law as codified under Justinian. Yet it was a de-
veloped system of law. Hence if Britain had retained the
Roman law it would have retained a system of law which
would not have needed much further development, as measured
by modern standards, and there would be very little material
for historical inquiry. But when the Roman legions with-
drew, apparently Roman law soon followed, and the task of
climbing out of a stage of no law had to be taken up anew.

Of course Anglo-American law has been greatly influenced
by Roman law and has borrowed many of its principles. Be-
cause of this fact, some maintain that there was no break
after the Roman occupancy, but the better opinion today seems
to be that whatever part of our law is of Roman origin came
from the Roman law, not as it was planted in Britain during
the Roman occupancy, but as it was again brought by Au-
gustine’s mission in 597 and by later ecclesiastics and chancel-
lors and justices like Holt and Mansfield.

Anglo-American legal history, since the Roman occupancy
and the period of no law, may be divided into five periods.
To these Dean Roscoe Pound has given the following names:
I. Archaic Period ; II. Strict Period ; III. Period of Equity ; IV.
Period of Maturity ; V. Period of Socialization. These periods
do not follow each other as buildings built side by side, but
more as darkness turns to daylight. One period does not be-
gin at a certain date and end at another date when another
period begins; but one period shades into another and over-
laps another. Some of the characteristics of the first period
still survive in modern times in the form of self-help still per-
mitted individuals. Characteristics of later periods are found
in earlier periods. Hence, when Anglo-American legal his-
tory is divided into five periods and these are given boundaries,
all that is meant is that there comes a time when certain
characteristics seem to predominate over others, and periods
have been named according to their predominating character-
istics, and periods have been said to begin and end when cer-
tain characteristics begin and cease to predominate.

The following table shows the English kings since the Con-
quest, with their regnal years, the reigning houses or families,
and the five periods named above :

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63

Anglo-Saxons

410-1066. . . .

Anglo-Saxons

William I

1066

William II

September 26.

1087

> Normans

Henry I

.... August 5,

1100

Stephen

. December 26,

1135 ,

Henry II

. December 19,

1154 '

Richard I

September 23,

1189

John

May 27,

1199

Henry III

Edward I

. . . October 28,
November 20,

1216

1272

| Plantagenets

Edward II

1307

Edward III

. . .January 25,

1326

Richard II

...... June 22,

1377 ,

Henrv IV

September 30,

1399 '

Henry V

1413

Henrv VI (red rose) ....

.September 1,

1422

1 Lancaster

Edward IV (white rose)

. . . . .March 4,

1461

| and York

Edward V

April 9,

1483

Richard III

1483 J

Henry VII

1485 5

Henry VIII

April 22,

1529

Edward VI

. . .January 28,

1547

}> Tudors

Mary

July 6,

1553

Elizabeth

. November 17,

1558

James I

.... March 24,

1603 '

Charles I ....

.... March 27,

1625

Commonwealth

. . .January 30,

1649

Charles II

May 29,

1660

- Stuarts

James II

. . . Februarv 6,

1685

William and Marv

. . Februarv 13,

1689

Anne.

1702

George I

August 1,

1714 '

George II

June 11,

1727

George III

. . . Qctober 25.

1760

George IV

. . .January 29,

1820

j> Hanovers

William IV

June 26,

1830

Victoria ...............

June 20,

1837

Edward VII

. . .January 22,

1901

George V

. May 6,

1910

!

Archaic

Period

Strict Period

[ Period of
[ Equity

I Period of
I Maturity

\ Period of
/ Socialization

CHAPTER IX

ARCHAIC PERIOD (ANGLO-SAXONS)

The first, or Archaic Period, accordingly, may bo said to
have begun shortly after the end of the Roman occupancy
(410 A.D.) and to have extended down to the time of Edward I
(1272 A.D.), altho during all this time it was changing and
becoming like the Strict Period, with which it was followed,
and it became so nearly like the Strict Period in the time of
Henry II that some perhaps might choose the time of Henry II
for the ending of the Archaic Period instead of that of Ed-
ward I.

Characteristics. The end, or purpose, of the law in the
Archaic Period was the preservation of the peace. Society
wanted to put a stop to the intolerable situation of warfare
which existed where men were primitive and there was no
law. As we look back upon the work of society in this period
we wonder why it did not at once outlaw private warfare
and substitute for vengeance and self-help a law enforced by
the state. But we must remember how people looked upon
vengeance and self-help then. They had always been resorting
to them. They would refuse to give them up. They wanted
a new order, or at least the best of them did, but at the same
time they wanted the old order, or at least the worst of them
did. Perhaps it will help to understand the situation in Archaic
times to think of the present situation so far as war between
the nations is concerned. We ought to outlaw public war and
substitute law for force in international relations. But how
do people take to the suggestion? The first effort here as in
Archaic times seems to have to be not to destroy vengeance
and self-help but to regulate them. The history of the Archaic
Period, consequently, is a history of the regulation of venge-
ance and self-help.

Anglo-Saxons. This regulation, at first, was very modest.
It consisted for the most part of efforts to prevent the avenger
from making good his loss at the expense of his innocent
neighbors. This was accomplished by the requirement as a
matter of custom that the avenger attempt to identify the
wrongdoer, that he follow the trail of the thief (fresh pur-
suit; hue and cry), that he resort to distress; and that he

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65

restrain his vengeance to the murderer or other wrongdoer
and his kin. Then the right of sanctuary came to be re-
spected.-* 1 About 600 A.D. wise men set down ninety dooms,
or tariffs, or sums to be paid for deeds of violence in lieu of
vengeance. These were known as the dooms of Aethelbert,
king of Kent (584-616) 22. Ine of Wessex (688-726) published
another set of tariffs. Offa of Mercia (757-796) published
still another set. Alfred (871-900) continued the work of the
others and made new rules for the preservation of the peace.
Canute, the Dane, (1017-1085) brought to a close the period
of Anglo-Saxon law. Edward the Confessor (1042-1051) was
famed in latel history as a lawgiver, but Maitland says he
never made a law but simply was credited with the law of his
predecessors. The next step after the development of the
blood fine, or wergild, was the right of proof of innocence.
This proof consisted (1) of the pronouncement of the doom
by the elders, (2) privilege of the proof, (a) by oath-helpers
if the accused was of good character, and (8) if the accused
failed to clear himself, payment of the wergild. However,
there was no way of compelling this. The accused had this
privilege. If he paid, that ended the matter. If he refused
to pay, or was too poor to pay, then the feud was revived.
This was as far as legal development went in Anglo-Saxon
times.

Land Ownership. When the Angles, Saxons, and Jutes mi-
grated to Britain they for the most part migrated as tribes.
In the larger expeditions all the people, high and low, free
and servile, from a considerable territory, moved together
from their old location to the new they were seeking. Hence
it would be expected that, after their conquests of the Britons,
they would establish in their new environment the same legal
system which they had had in Germany. This is found to be
the case. The territory captured' was probably allotted by
the leaders of a tribe or state according to a plan creating
communities and districts corresponding with those with which
they had been familiar. To each hundred warriors, with their
families and all others who had occupied a similar district
with them in Germany, was allotted definite territory with

21 Cf. the regulation of vengeance in Hebrew law, 21 Exod. 13 ; 1 I Kings 50 ; 2

I Kings 28 ; 19 Gen. 4 ; 19 Judg. 22 ; 21 Exod. 13 ; 20 Josh. 1-9.

22 Maitland and Montague, Sketch of English Legal History, Appendix I. Cf. Code
of Hammurabi.

5—36004

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natural boundaries. This larger district was divided among
chiefs and village communities. Village communities were
made up of families bound together by blood, marriage, and
ties of neighborhood, who established village communities with
their dwellings, outbuildings, enclosures, and common-field sys-
tem of husbandry, consisting of meadow fields assigned to
freeholders and outlying pastures and woodlands used in com-
mon. The land assigned to the village communities was in
turn assigned to each freeholder in amounts of about 120
acres each (one hide), and was held, the house and its imme-
diate plot in absolute ownership and the rest subject to the
common-field method of agriculture. To the chiefs, or magis-
trates, must have been assigned large independent tracts en-
tirely independent of the tracts given to village communities.
In addition to the land thus alloted was a large amount of un-
appropriated land, which belonged to the tribe or nation, and
which later came to be regarded as land of the king. This
latter land was granted out to the churches and great men
from time to time, and was known as bocland, to distinguish
it from the rest of the land which was known as folkland.
Freeholders of folkland had the power of alienation and their
heirs could not be disinherited. Some sort of dower and cur-
tesy also attached to folkland. Bookland also usually provided
that the holder could convey and devise by will. A consider-
able class of tenants came to settle on different parts of the
land in the country still unappropriated, without absolute title
either by allotment or book, but by paying rent to the state.
They had not more than life estates, and could not convey or
will, but undoubtedly otherwise held their land as folkland.
The churches and other holders of bookland granted land for
temporary use, during the latter part of the Anglo-Saxon
period, and this was called laenland. The tenant had the
usufructuary enjoyment of the land rather than ownership.
Thruout Anglo-Saxon history the large estates kept growing
in number and size. This was due both to the new grants
by the king and to the fact that the small estates of the poorer
freeman were constantly being merged in the great estates of
the territorial lords. By the close of the Anglo-Saxon period
the greater part of the country was held in this way. A dis-
trict then assumed a form closely resembling the manor of
feudal times. The relation of lord and man developed until

Willis: Anglo-American Law

67

the entire social order was included therein. Waste or public
land of the state was the king’s land and waste land in a dis-
trict was regarded by the territorial lord as his individual
property. Old community rights of pasturage and the like
came to be regarded as incorporeal rights in the land of the
lord. In other words, in practical effect tho not in name, there
was established by the Anglo-Saxons a feudal system. Condi-
tions were ripe for the introduction of the feudal system in law
as well as in practical effect.

Status. The social life of the people in Anglo-Saxon times
was characterized by a new status system which took the
place of an older disappearing patriarchal system. The social
ranks consisted of the king and thegns appointed by him ; the
earls, or noblemen, and the thegns appointed by them; the
ceorls, or freemen; and the theows (serfs), or non-free men —
more slaves than villeins of later history. The ceorl was the
typical farmer.

Substantive Law. The ideas of law and legal procedure
possessed by the Anglo-Saxons were very crude. The only
social interest which they tried to protect was that in peace.
They tried to abolish the private warfare which was the re-
sult of vengeance and self-help. They did this as all human
beings have done, by a scheme of social control recognizing
legal capacities in individuals and providing means of legal
redress. But the only antecedent rights and duties which
they recognized were those of personal safety, family, and
property, with the merest beginning of contracts, and all of
these were bound and limited by the principles of the status
system and the system of land ownership. Serfs were given
no rights. Individuals in other classes had not emerged so
as to be given all the same rights. The only obligations, or
contracts, recognized were the pledge (wed) and the bail, or
guarantee (borh). The property right included cattle (chat-
tels), and land, bocland evidenced by charters, held by churches
and thegns, and folkland held by freemen. Land was con-
veyed by deeds of conveyance and by livery of seisin. The
only public right recognized was that of the king’s peace, at
first confined to the king’s house, but gradually extended to
the highways, his ministers and servants, and finally to the
whole realm. Wrongs were not divided into torts, crimes, and
breaches of contract, but they were just wrongs. There was

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no distinction between torts, crimes, and breaches of con-
tracts. Wrongs had a tort aspect in that wrongs were gen-
erally regarded as private, with definite compositions provided
therefor by the dooms, but otherwise they could not be called
torts. There was no criminal law, altho treason (as a viola-
tion of the king’s peace) dates from the time of Alfred, and
between the time of Canute and the Conquest there was de-
velopment in the direction of a true criminal law in connection
with revenue, the police, and the substitution of the king’s
vengeance for that of the community. But even then there
were no prisons and no criminal procedure.

Remedies. The remedies (remedial rights) for legal wrongs
under the Anglo-Saxon system were essentially fines (wergild)
provided by way of composition. If the fine was payable to the
king for a breach of his peace it was called a wite. If the fine
was payable to the injured party it was called a bot. By Al-
fred’s law of treason, however, it was provided that such of-
fense should be botleas (bootless), that is, incapable of being
compounded by money payment. This assessment of wrongs
at a price in money is a peculiarity of early law. It is found
not only in the complicated tariffs, or dooms, of the Anglo-
Saxons, but also in the Code of Hammurabi and Hebrew law.23
Everything had its price, from a chattel to human life. This
scheme of compositions succeeded the blood-feud, and was in
turn succeeded to some extent by outlawry, in case of persist-
ent refusal to appear in court, and by the death penalty in case
of treason and secret murder.

Courts. Government among the Anglo-Saxons also was
modeled after that with which they had been accustomed in
Germany. There was some sort of local assembly of the free-
men of the village which regulated purely local affairs, so far
as they were regulated, and elected representatives of the vil-
lages in the court of the hundred. The headman of the hun-
dred, reeve, was the presiding officer of the court. The hundred
court was also attended by the parish priest, four additional
chosen representatives from each township, and by the lords
of separate estates within the district, or by their stewards.
Instead of the German national assembly there were in Eng-
land above the hundred the king and the witanagemot. With
the union of the many small states into seven larger kingdoms,

23 21 and 22 Exod.

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69

the assembly of the smaller states became the folkmoot of the
shire, the county court of later times. With the union of the
seven kingdoms into a single nation, there was a further ex-
tension of the same process. The shire contained a number
of hundreds. The chief man of the shire was the ealdorman,
who was a military leader, sat as a member of the shire court,
as a national officer received one-third of the profits of the
court, and was chosen by the king and witan until the office
became hereditary. The sheriff, a representative of the king
appointed by him, was the presiding officer of the shire court.
The shiremoot was held twice a year. Besides the ealdorman
and sheriff, its members were the bishop, the lords of private
estates, the reeve and four men from each township, and all
public officers. The witanagemot was not composed of elected
representatives but of the ealdormen of the shires, the bishops
of the dioceses, and the king’s thegns, or ministers. The
witanagemot was never large, but increased in size with
the development of royal power. A complainant could not ap-
ply for relief to the shire court until he had thrice been denied
relief by his hundred court. The king could not be appealed
to until after both the hundred and the shire courts had failed
to do justice. Besides the courts above mentioned there were
the sheriff’s tourn, which met once a month, tun-moots, and
courts of a private nature held by thegns upon their own
land (from which latter courts there was probably an appeal
to the shire court, or to the king) .

Legal Procedure. The Anglo-Saxon modes of trial were
compurgation and the ordeal.

Compurgation. If anyone was sued in a civil action or ac-
cused of a crime, he could bring eleven men of the hundred to
swear on his behalf that they believed his account of the case.
In the case of legal transactions, the witnesses or some of them
probably formed the compurgators. In the cases of torts and
crimes the witnesses would be the compurgators if there were
any such. Otherwise the compurgators were much like wit-
nesses to character. If the defendant was not outsworn by
the compurgators of the plaintiff or complainant, he of course
won his case.

Ordeal. Ordeal consisted in an appeal to the supernatural.
The person accused first swore to his innocence, and then he
had to undergo one of three tests: the ordeal by water, the

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ordeal by fire, or the “accursed morsel”. In the ordeal by fire
one had either to grasp a red-hot iron, or to walk bare-foot
over burning ploughshares. The scarred and blistered mem-
bers were then bound up by a priest with consecrated oint-
ment. If the scars were healed at the end of three days the
sufferer was innocent. If not, he was guilty. The ordeal by
water was of two forms: hot water and cold water. In the
case of hot water the accused plunged his arm into boiling
water, and thereafter was treated as in the case of the ordeal
by fire. In the case of cold water, the accused was tied hand
and foot and was thrown into a pond or river. If he floated
he was guilty; if not, he was innocent. In the case of the
accursed morsel, the accused, after calling upon the Deity to
make the bread stick in his throat if he was guilty, proceeded
to eat the morsel slowly. If he swallowed it freely he was
innocent ; but if he choked in any way he was guilty.

The above scheme for the regulation of vengeance was an
effort to preserve the peace by giving to the accused a few
capacities to influence the conduct of the avenger, and by giv-
ing him the right to a formal dramatized procedure, like com-
purgation and ordeal, administered by the thegns, or wise
men, who applied the tariffs and the law they could remember
(custom and Roman law), in the hundreds and county courts.
But, with the possible exception of a little criminal law, it went
no farther than voluntary acquiescence on the part of the con-
victed accused, and if this failed society went back to venge-
ance and self-help. There was no execution of the decision.
Yet thruout Anglo-Saxon history there was a growth in law,
even if it was only a growth in the regulation of vengeance.
As we have seen, it developed some substantive law and a
great deal of legal procedure. Just as the law of wrongs was
not classified, so the law of procedure was not. There was
procedure, but procedure was not divided into pleading, evi-
dence, and practice. There were no rules of pleading in the
sense in which that term is understood, and there were no
rules of evidence, yet the summoning of the attesting wit-
nesses, the quantitative effect of the oath, the conclusiveness
of seal, and the production of the original document gave cer-
tain evidential effects. Such was the Anglo-Saxon customary
law, but this it was which was destined in time to be made over
into the common law of England and the United States.

CHAPTER X

ARCHAIC PERIOD (NORMANS AND FIRST
PLANTAGENETS)

Normans. The Norman kings continued the work begun
under the Anglo-Saxon kings, and Henry II, the first of the
Plantagenets, did more than regulate vengeance and self-
help; he almost supplanted them by the machinery of the
state.

William the Conqueror continued the Anglo-Saxon law, both
for his own sake and for the sake of his subjects. He ap-
plied the murder fine to his own uses, and he developed the
idea of the king’s peace. He also introduced some new fea-
tures. He introduced in place of the witanagemot the Curia
Regis, composed of the officers of state, barons, and justices;
and the feudal system, altho he also kept the old English
militia of foot soldiers in addition to the feudal system. He
restored national unity, and just before his death broke the
neck of the feudal system (so far as the political power of the
lords was concerned) by requiring every landowner to take an
oath to be faithful to him first. The barons triumphed over
Stephen. But Henry II again conquered the barons by sub-
stituting scutage for military service.

The Normans had high administrative skill. Their ability
was high, and there was little corruption among them. They
had no written code. They applied the Anglo-Saxon com-
mon law (dooms, etc.) as developed by a French-speaking
court and some Roman law maxims, principles, logic, method,
and spirit, and allowed the canon law to be introduced thru the
Roman Catholic church in probate, divorce, and admiralty
matters. Their legal language was Latin, and this continued
to be the legal language in records of litigation until 1731,
when English was substituted ; and in published laws and law
books until the thirteenth century, when French was sub-
stituted. In the sixteenth century, English supplanted French
in laws and law books. The Normans introduced the feudal
system, but their real contribution to English legal history
was the idea that justice should be administered by the king’s
justices. This kept English law from going back to Anglo-
Saxon law, on the one hand, and from becoming Roman law,
on the other hand.

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First Plantagenets. The first of the Plantagenets, espe-
cially Henry II, completed the work carried on by the Nor-
mans. They did so much, in fact, that it is difficult to decide
whether their work marks the end of the Archaic Period or
the beginning of the Strict Period. Roscoe Pound says that
English law owes more to Henry II than to any other ruler.
Henry II attempted to concentrate the whole system of English
justice in a court of professional judges, the Curia Regis, from
which in his day there was separated the Court of Exchequer
presided over by barons. He tried to get control of the church
courts by the Constitutions of Clarendon (1164), but failed
in this effort thru his quarrel with his chancellor, Thomas
a Becket, and final murder of him. This reform was brought
to pass in the fifteenth century. The nation was offered royal
justice in place of the Anglo-Saxon local courts of the county
and hundred and of the domestic Court Baron which had come
in with the feudal system, and the king's justices appeared
as Justices in Eyre. The other courts were not abolished. So
long as litigants would continue to go to them they continued
to function, but by the reign of Henry III the kings' courts,
which then consisted of Exchequer, Common Pleas, and King’s
Bench, had practically supplanted the local courts. It is be-
cause they did not supplant the local courts before this time
that the Archaic Period should be said to continue thru the
reign of Henry III and the Strict Period to begin only with
Edward I.

Social Interests. The only social interest protected in the
times of the Normans and the first four of the Plantagenets
was the social interest in peace. These Plantagenets and the
Normans were, like the Anglo-Saxons, interested in keeping
the peace. The thing which characterized their work, and
distinguishes it from that of the Anglo-Saxons, was the more
effective way in which they protected this social interest. As
has been said, they did not entirely supplant vengeance and
self-help until the very close of the period, but continued to
regulate them; but their regulation was much more perfect
than was that of the Anglo-Saxons. They protected the social
interest in peace by changing and enlarging the private ante-
cedent rights, by the recognition of certain public rights, by
creating new remedial rights, by creating new courts, and by
making available a new and better system of legal procedure.

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73

Substantive Law. The private antecedent rights recog-
nized were those recognized in Anglo-Saxon times, personal
safety, family, and property. The individual still remained
submerged in the family. The serfs were not wholly eman-
cipated, but their status as villeins was better than as
serfs. Hence, altho the rights of personal safety and family
were recognized both by the civil and criminal law, the right
which bulked large was the right of property, and the rights
of personal safety and family seemed incidental to the right
of property. In other words, all of these rights were bound
up in the feudal system.

Feudal System. William the Conqueror introduced the
feudal system into England. By his conquest he made good
his pretended claim to the English throne, and thereby suc-
ceeded to all the public land of the kingdom which had already
come to be regarded as belonging to the king as supreme lord
of the realm. He was also entitled to all the land of those
who had opposed him, on the ground that it was forfeited to
him under the customary law ; and in putting down rebellions
in the years following his victory at Hastings he increased
these forfeitures. Those of the English who had not forfeited
their holdings to him and who were willing to accept him as
king surrendered their holdings to him and received them back
from him as supreme lord. In this threefold way all the
land of the kingdom became the king’s land. The process was
complete within twenty years after the Conquest. The feudal
system was based on the doctrine that all the land in the
kingdom was owned by the king, and as soon as William had
established this doctrine the foundation for the feudal system
was laid. He then proceeded to establish the next great char-
acteristic of the English feudal system, that all land was held
either directly or indirectly of the king. That is what is
known as the theory of tenure. The king granted lands to
lords, called tenants in capite, for military services to be
rendered by them. These lords in turn regranted in smaller
subdivisions parts of the land which they had received to their
tenants or followers for military or agricultural services to be
rendered to them and military service to be rendered the king
as lord paramount (a peculiarity introduced by William I
from Anglo-Saxon law). The second grantees in the same
way could grant out parcels of their land to others, and so

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on indefinitely, but the process of subinfeudation was stopped
by the Statute of Quia Emptores passed in 1290 which en-
acted that in case of any grant by a lord to his followers the
latter should hold not of him but of his lord above him. How-
ever, this statute did not apply to fee simples, nor to tenants
in capite. The land granted by a lord to his followers, in any
of these cases, was known as a manor and consisted of the
demesne land, which the lord took especially for himself, land
granted by him to tenants by subinfeudation and divided up
into smaller manors, folkland, tenemental land, and waste land
used in common.

Services. The services required of their tenants by the king
and the other lords who granted out lands were either military,
divine, agricultural, or rustic sordid services, and these services
gave character to the tenure of the tenants. Those who had
to perform unitary services held by military tenure. Those
who had to perform divine services (saying prayers) held by
frankalmoign tenure. Those who had to perform agricultural
services held by socage tenure. Those who had to perform
rustic sordid services held by villein tenure. The unit for de-
termining the amount of military service a knight had to
render was called a knight’s fee, usually five hides (above 600
acres). The period of service for this unit was forty days.
Some of the king’s tenants-in-chief had only one fee, but the
great lords had many and a few had as many as fifty. The
term “barony” was applied to the greater holdings. When'
Henry II substituted scutage, or a money payment, for mili-
tary service, a knight’s fee was commuted to forty shillings.
There were some other kinds of knight’s services. One was
called grand sergeantry, which consisted of rendering some
special service to the king. Another was called cornage,
which consisted of winding a horn to warn the people of the
coming of an enemy, generally the Scots.

Incidents. Besides the services, above named, there were
a number of incidents connected with feudal tenure. There
were two sentimental incidents, homage and fealty. Homage
was a ceremony where the tenant kneeled before his lord and
told him he became his man, after which the lord kissed him.
Fealty was an oath of allegiance to the lord taken by the
tenant. Homage was an incident of military tenure and some-
times but not usually of socage tenure, but not of the other

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75

tenures. Fealty was an incident of all forms of tenure. There
were a number of substantial incidents or privileges known as
wardship, marriage, reliefs, fines, gifts, and escheat. The
privilege of wardship gave the lord the legal capacity to man-
age the property of minors, under twenty-one years in the
case of men and under fourteen years in the case of women,
and to take all of the profits arising from the land, except
enough to pay for the expense of keeping the wards. The
privilege, or right, of marriage gave the lord the legal capac-
ity to choose the person whom a minor should marry, and
in case of refusal to marry the person so selected there was
a forfeiture of the value of the marriage. Reliefs were in
the nature of succession taxes, and were comparable with the
modern inheritance taxes. The amount of the tax was gen-
erally one-fourth of the annual value of the property in the
case of knight-service (in the case of tenants in capite, one
year’s profits), and in the case of socage tenure, one year’s
rent. By custom the lord was sometimes entitled to the best
beast, called a heriot. Fines were taxes on sales. The modern
mortgage tax is somewhat analogous. The privilege, or right,
to aids, or compulsory gifts, was the legal capacity of the lord
to compel his tenants to ransom him in case of capture, to
make his eldest son a knight, and to provide the money to
marry his eldest daughter. The right of escheat was the legal
capacity to have land come back to the lord on the termination
of tenure. All of the incidents named above attached to mili-
tary tenure ; reliefs, fines, probably aids, and escheats attached
to socage tenure (with the exception of gavelkind) ; wardship,
relief, fines, and escheat attached to copyhold tenure ; but noth-
ing is known of any substantial incidents which attached to
the other forms of tenure.

Tenure. The highest form of tenure was tenure in chiv-
alry, or military tenure. It was free but uncertain. The next
highest tenure was socage. It was free and certain. The ten-
ants under both of these forms of tenure were freeholders.
Pure villeinage tenure was base and uncertain. The interests
were below freeholds. This tenure later developed into copy-
hold tenure. Privileged villeinage was base and certain. The
interests were like freeholds.

Estates. Under the feudal system, no one except the king
could own land allodially, as people had in Anglo-Saxon times ;

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their right was only a right to hold it. This right might be for
a longer or shorter time. The period during which land was
held was called an estate. This period might be at will, for
years, for life, or for the life of a person and his heirs, etc.
Under military and socage tenures the tenants generally had
an estate of indefinite duration, which meant that they could
enjoy the land for their lives and at their death it would go
to their heirs, or to the heir of their bodies, on the principle
of primogeniture as soon as that principle was established
(which was before the reign of Henry II), and among the
children equally prior to that time. At first the land could
not be alienated, but before the time of Edward I it became
the rule, not only that a tenant could alienate his land by
feoffment or grant when it was granted to him and his heirs ;
but also when it was granted to him and the heirs of his body,
because it was held in the latter case that having heirs of
his body was merely a condition and that as soon as he had
heirs of his body he had a fee simple estate which he could
transfer as much as in the first case. Before the right of
alienation grew up the heirs took from their ancestor’s gran-
tor. Thereafter their ancestor was complete owner (as above
explained) and they took from him by descent. Villein tenants
during the period now under consideration held land only at
the will of their lord. Estates for years and future estates
were probably recognized by the time of Henry III, but they
came into more common use in the time of Edward I (Strict
Period) after the Statute of Quia Emptores had abolished
subinfeudation. Henry I, by his Charter of Liberties, enacted
that testamentary disposition of personality should not be
interfered with, and thereby continued the Anglo-Saxon law
as to chattels. Wills of land also were probably permitted by
the Anglo-Saxons, but under the feudal system no will of land
was permitted from the time of William the Conqueror to the
Statute of Wills (1540), and this applied to non-military as
well as military tenures. Equity found a way to evade this
rule to some extent before the rule was changed by the Statute
of Wills. Dower in the time of the Anglo-Saxons depended
upon express gift of the husband, and this continued to be
true up to the time of Glanville (Henry II), but by the time
of Henry II the widow had the right to a life estate in one-
third of the estate of inheritance of her husband of which

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he was seized during coverture, unless he provided for her
by jointure. Magna Charta repeated this rule. Curtesy, the
life estate of the husband in all the estates of inheritance of
the wife of which she was seized during coverture when there
was issue capable of inheriting, was also established by the
time of Henry III, which was also the time of Bracton.

Contracts. The contracts recognized in this period were the
promise under seal and the deliver-promise and surety-promise.

Criminal Law. William the Conquerer allowed the Anglo-
Saxon theory of the king’s peace to remain, and shortly after
his coronation extended it so as to put the whole country
under the Pax Regis. It then became an offense against the
Crown for anyone to commit an act of violence within the
realm. The Norman lawyers also altered very much the simple
law of treason of Alfred, by developing the idea of the feudal
tie between lord and vassal, so that they were inclined to treat
all offenses personally distasteful to the king, as overlord, as
treason. Thus about the time of Henry II it was treason to
kill the king’s deer. The law of homicide, rape, assault, robbery,
and theft became practically the same as in the law of Eng-
land today. The church borrowed the inquest from the Frank-
ish kings. It got jurisdiction over crimes thru supplanting
vengeance by sanctuary, which developed into benefit of clergy.
The king got jurisdiction thru the gradual extension of the
idea of the king’s peace.

The distinction between crime and tort began as early as
Glanville. A crime was a breach of the king’s peace, a disturb-
ance of the order of good government, prosecuted by the
Crown, tho at the instance of a private accuser, and hence
criminal cases were called pleas of the Crown. A tort was a
wrong committed against an individual; the same act might
be a crime but not necessarily so. If it was, it had to be tried
separately, and the criminal penalty was quite distinct from
the compensation paid the sufferer. The final separation of
tort and crime came in the reign of Henry III, when the writ
of trespass was invented. Breaches of contract were also
recognized as separate legal wrongs.

Remedies. That part of the Archaic Period covered by the
reigns of the Normans and the first Plantagenets not only en-
larged the antecedent rights above described, but also gave
some new remedial rights. These may be classified, like the

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wrongs for which they were given, as criminal, tort, and
contract.

The criminal remedies of the state were no longer confined
to fines but became very much as they are today, except that
there was a strong inclination to impose the capital penalty for
slight offenses. The accused also acquired some criminal
remedies in this period. According to Magna Charta and the
principles claimed prior thereto, it was wrong to delay justice,
and four writs were invented, during the times of the Nor-
mans and the first Plantagenets, to protect the subject against
lying long in prison without trial. These were the writ de odio
et alia, issued out of the King’s Bench to the sheriff command-
ing him to hold an inquiry to determine whether or not
he was holding a prisoner in custody upon a charge of murder
on reasonable suspicion or only for malice, and if the latter
to admit him to bail; the writ of main prize, also directed to
the sheriff, directing him to take pledges in a fixed sum for
the prisoners; the writ de homine replegiando, addressed to
the sheriff, commanding him to repledge or take bail for a
prisoner in custody; and the high prerogative writ of habeas
corpus, directed not to the sheriff but to the jailer, ordering
him to bring the body of the prisoner with the cause of his
detention to the king’s court, so that the judges might deter-
mine whether or not the prisoner ought to be allowed bail.
The first instance of the use of the writ of habeas corpus is not
found until the time of Edward I.

The civil remedies were largely restorative. Chief among
these were the real actions: writ of right to try the title to
freeholds ; the assize of novel disseisin and the assize of mort
d’ ancestor to regain possession by the one last seized; the
assize of d’arrein presentment to determine who made the last
presentment; and the writ of entry to regain possession for
those last seized in other classes than those covered by the
assize of novel disseisin and the assize of mort d’ancestor.
The writ of right issued out of the Curia Regis probably as
early as William the Conqueror. The assizes and the writ of
entry were known by the time of Henry II. Real actions
would lie only for freeholders. Hence the term “real prop-
erty” came to be applied to freeholds only, and leaseholds were
classed as personal property. However, by the time of Henry
III, Bracton informs us that the tenant obtained a writ of

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trespass de ejectione firmae by which he could recover pos-
session of land as well as damages, so that it had the same
effect as a real action. It is interesting to note that this ac-
tion later developed into the action of ejectment, a mixed ac-
tion, which became available for freeholders as well as lease-
holders, and supplanted all of the real actions. To be com-
pared with real actions there were certain personal actions,
including debt, detinue, trespass vi et armis , deceit, account,
and covenant. Debt and detinue were available before the
time of Glanville (Henry II) ; covenant and deceit were avail-
able before the time of Henry III; and trespass and account
during the time of Henry III. Debt and detinue were at first
one and the same action. Debt would lie for a stated sum of
money due by the defendant to the plaintiff as his property,
and detinue for a chattel thus owed. At first the difference
between actions ex contractu and ex delicto was not strongly
marked, but of course debt was really an action of contract
and detinue an action of tort, and this distinction was recog-
nized at least as early as the time of Bracton (Henry III),
and the action of debt was separated from the action of
detinue. Covenant was a contract action. Account was
really an action of quasi-contract. Covenant lay to enforce
a promise under seal. Account lay to enforce obligations im-
posed by law upon bailiffs, guardians, and receivers. Tres-
pass was the remedy for a multitude of wrongs of all sorts,
such as trespass quare clausum fregit (land), trespass de
bonis asportatis (goods), and trespass to person (battery,
false imprisonment). In all of these actions, except detinue,
the remedies were not restorative but compensatory. The
plaintiff, if he recovered, recovered damages.

Courts. In considering the legal redress afforded by the
Normans and first Plantagenets, we should first consider the
courts of their times.. William the Conqueror undertook to
centralize the administration of justice. He left the Anglo-
Saxon local courts standing, nominally without curtailment
of their powers. But he established a Curia Regis, or coun-
cil, in place of the Anglo-Saxon witanagemot, composed of
officers of state, barons, and judges, to which he gave crim-
inal and civil jurisdiction over all matters (original and ap-
pellate) and also power over all matters connected with the
exchequer, such as feudal reliefs, fines, and forfeitures ; and

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he gave it, what the hundred and county courts had not gen-
erally had, the power to enforce a judgment against a power-
ful wrongdoer. As business increased, a division of labor
became necessary, and the term “Curia Regis” was applied to
those who acted as a judicial body, while the councilors of
the king took the name of concilium ordinarium. This divi-
sion took place in the time of Henry II. A further division
of the Curia Regis became necessary in the time of Henry II,
and a Court of Exchequer was established to deal with finan-
cial matters and the collection of the royal revenue. The
judges of this court were called barons of the Exchequer, with
the chief baron as president. Another court was carved out
of the Curia Regis in the time of Henry III by the forma-
tion of the Court of Common Pleas, or Common Bench. Its
jurisdiction extended to all civil cases between subject and
subject, which were called “common pleas” to distinguish them
from “pleas of the crown”. It had exclusive jurisdiction in
all real actions, debt, and covenant. Magna Charta provided
that it should sit in one place, and Westminster Hall was
fixed upon. The judges of this court were called justices,
with the lord chief justice as president. After the establish-
ment of this court there remained in the Curia Regis all crim-
inal jurisdiction, all appellate jurisdiction from inferior
courts, and any civil business not transferred to the Exchequer
and Common Pleas. The Curia Regis came to be called
“Bancum Regis”, and then the Court of King’s Bench. It
became a separate court in the time of Henry III. It ab-
sorbed all the business of the Curia Regis except perhaps the
ultimate appeal. It had two sides, a crown side and a plea
side. The crown side was concerned with criminal matters,
appeals from inferior courts, liberty of the subject, and con-
trol of corporations. It issued the writs of mandamus, habeas
corpus, and quo warranto, when they .came into use in the
Strict Period. On the plea side it had jurisdiction of all
actions of trespass. The King’s Bench was the highest court
in the land. The king was supposed to sit there, altho no
king until James I actually did sit in it. It had appellate
jurisdiction over the Common Pleas.

In addition to the above courts, during this period there was
established a system of itinerant justices (justices in eyre).
They were appointed and sent by royal commission, but gen-

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erally justices of the Curia Regis were chosen. The eyre of
each of the judges generally lasted seven years. William I
was the first to send judges on circuit. At first the crim-
inal jurisdiction of the local courts was left untouched, except
that when a justice in eyre was within a county he, instead
of the sheriff, presided as judge. By the assize of Clarendon
Henry II provided for inquests by twelve lawful men of each
hundred and four of each township into robberies, murders,
thefts, etc., and the presentation of criminals to the justices
in eyre. Magna Charta (1245) forbade sheriffs, constables,
coroners, and all bailiffs of the king from holding pleas of
the crown. In this way criminal jurisdiction was reserved
almost exclusively to these justices by the time of Henry III.
By this time also the action of trespass had become so popu-
lar (because tried by jury) that most civil business was drawn
into the king’s courts. The justices in eyre had the same
jurisdiction as the common law courts, except that their ex-
chequer jurisdiction was limited to half a knight’s fee. This
supplanting of the local courts by the king’s courts marks
the end of the Archaic Period.

Other courts of the Archaic Period which we must consider
are the Court Baron, the Law Merchants’ Courts, and the
Ecclesiastical Courts. The Court Baron was a manorial court
composed of the freeholders of the manor, with the steward
as a kind of clerk, but it was not a court of record. It had
jurisdiction to try by writ of right claims to land within the
manor, and personal actions, where the amount claimed was
not more than forty shillings; but the former proceedings
could be removed to the county court, and the latter to the
king’s courts. After judgment the court at Westminster could
rehear the case on a writ of false judgment. There was
another side of the Court Baron, presided over by the steward
as judge, exclusively for the copyholders of the manor. The
Law Merchant Courts were of two sorts: (1) maritime,
which were local courts held by an admiral in seaport towns
as early as Henry I, and (2) commercial, which were courts
in towns held by the mayor, lord, and guilds for the mer-
chants. In the maritime courts was developed admiralty law,
and in the commercial, the law of insurance and negotiable
instruments. Before the Conquest there were no separate
Ecclesiastical Courts. The bishop sat along with the earl

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and shire-reeve in the county court. William I allowed the
clergy a separate jurisdiction, and no fewer than seven kinds
of Ecclesiastical Courts arose. The lowest of these was the
Archdeacon’s Court. An appeal lay from this to the Con-
sistory Court of the bishop of the diocese which also had some
concurrent jurisdiction. The Court of Peculiars was another
court of original jurisdiction over parishes in the province of
Canterbury. The Prerogative Courts of Canterbury and York
and the Court of Arches were appellate courts, and Henry
VIII established another appellate court called Court of Dele-
gates. An appeal lay to the Pope down to the time of Henry
VIII, altho the Constitutions of Clarendon undertook to take
this away. The Ecclesiastical Courts had jurisdiction over
all ecclesiastical matters, like heresy, schism, and validity of
holy orders ; over matters of marriage, legitimacy, divorce,
wills of personalty, and granting of letters of administration ;
and over all cases, whether civil or criminal, where one of
the parties was a clerk. The law applied by the Ecclesi-
astical Courts was canon law, and the procedure followed was
canon law procedure. The law of wills, marriage, and divorce
is therefore of canon law origin. Henry II tried to get con-
trol of church courts (in the Constitutions of Clarendon),
but in the end he failed.

The courts of the last part of the Archaic Period, there-
fore, were the Anglo-Saxon local courts of the county and
hundred; and the Court Baron of the manor (which took the
place of the court of the Anglo-Saxon thegns) ; the Law Mer-
chants’ Courts; the Ecclesiastical Courts; and the King’s
Courts. This was an elaborate system of courts as compared
with what the Anglo-Saxons had had.

Legal Procedure, Yet great as was the work which the
Normans and the first Plantagenets did for the organization
of courts and for substantive law, both antecedent and reme-
dial, their greatest work was in the field of procedure.

Writs. The first step in legal procedure in the king’s courts
(except in cases tried by the assize) was by writ. This inno-
vation was introduced on the establishment of the Curia Regis.
In Anglo-Saxon days the plaintiff simply made a verbal com-
plaint to the sheriff, or hundred reeve, or other local judge.
But when cases ; had to be taken up to a central court the
situation was different. The king’s justices had to depend

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upon the sheriff of the county to secure the attendance of
the defendant. A verbal message from the court to the sheriff
might miscarry or be misinterpreted. Hence there was is-
sued by the chancellor, secretary to the Curia, a brief state-
ment of the case with a command in the name of the king
to summon the defendant to appear and answer the complaint.
This was called a breve, but soon received the Anglo-Saxon
name of writ (writing), to distinguish it from the verbal
complaints in the local courts. Henry II provided that no
suit should be started in a local court or any other court
except by writ. The invention of writs was the making of
the common law.

Pleading. By Bracton’s time a system of pleading had de-
veloped in the king’s courts. The plaintiff came into court,
and by himself or by his attorney stated his cause of action.
The defendant answered, making objection on a point of law,
or denying some or all of the facts. The plaintiff then re-
plied, and then the defendant until they arrived at an issue
(way out), that is, not a vague indefinite quarrel but a dis-
pute on a particular point. A man could not raise both an
issue of law and an issue of fact. In later times these verbal
altercations developed into our modern system of written
pleadings. An issue of law was tried by the judge alone, an
issue of fact by the modes of trial peculiar to this period.

Trial. William I did not abolish the Anglo-Saxon modes
of trial by ordeal and compurgation, but he introduced two
new modes of trial, the duel (wager of battle) and the jury.
The ordeal was abolished in 1218, after it had been condemned
by the Lateran Council in 1215. Compurgation was not abol-
ished in England until 1833, but it began to grow unpopular
in the Archaic Period. However, this was the only way of
trying an action of debt, and largely accounts for that action’s
finally becoming obsolete. Proof of death today is still ac-
cording to the form of Anglo-Saxon proof by witnesses
(slightly different from compurgation). The action of ac-
count was tried before auditors.

Wager of Battle. The duel, or wager of battle, did not ap-
ply to pleas of the crown, because the sovereign could not
be challenged to fight. Yet there was one exception to the
rule, one case where vengeance was not abolished but regu-
lated. In cases of murder and manslaughter any blood

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relative of the slain man could ‘‘appear’ against the slayer.
The latter then threw down his glove and claimed combat.
If the accuser did not take up the challenge the accused went
free. If the challenge was accepted, a day was appointed,
and in lists presided over by the sheriff, or itinerant justices,
the combat took place, beginning at sunrise and lasting to
sunset if not previously determined. If the accused pro-
longed the fight to sunset he was declared guiltless, and the
accuser was fined and declared infamous. If the accused lost
he was hanged if still alive. Appeal of felony continued to
the Tudor period. It was claimed in 1817 by a man named
Thornton, who was acquitted when his accuser declined the
challenge. Two years later the appeal was abolished. Wager
of battle also obtained in “affairs of honour”. The duel was
a mode of trying issues of fact in actions commenced in the
king’s courts. The writ of right was tried either by duel or
jury, and the judgments in the assizes were without prejudice
to later settlement by battle. In civil cases champions (or
prochein amys) fought, in order to guard against ending the
suit by killing one of the parties to the action. Wager of
battle had almost died out in civil actions by the end of the
reign of Henry III, but it was not abolished; it fell into disuse
because the writ of right ceased to be used. There is a case
on record as late as Elizabeth.

Jury. The great mode of trial introduced by the Normans
was trial by jury. The origin of the jury in criminal trials
is wrapped in more or less doubt. Alfred the Great estab-
lished a system of frankpledge, or presentment of criminals
for trial by sworn men of the hundred, and some think this
was the origin of the grand jury. The Frankish kings had
employed a sworn inquest for the purpose of detecting crime,
that is, an officer of the king called upon neighbors to de-
clare the truth about crime. William I, in compiling the
Domesday Book, introduced the sworn inquest into England.
The sheriff and certain selected men had to hold a sworn
inquiry into the local customs, tenures, etc., and to take a
kind of census of the population. The Norman kings used
the sworn inquest for fiscal and administrative purposes. The
sworn inquest survives today in the coroner’s inquest. Others
think that the grand jury had its origin in this sworn inquest.
At any rate the accused was presented or indicted by some

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body of men. While the ordeal obtained he could then be
tried by ordeal. But after the abolition of the ordeal, in those
cases where wager of battle did not apply, there was no
method of trial except by a jury, either the same one which
presented him or a second one. But a man could not be com-
pelled to be tried “by the country” unless he consented. He
was therefore sometimes tried by a second jury, and some-
times he was asked to plead and if he refused suffered peine
fort et dure until he was pressed to death if he remained
contumacious. By the time of Bracton when a man put him-
self upon the country, after he had been presented by the
hundred jury, he was tried by a jury of twelve (inquest jury) ,
which determined his guilt or innocence of their own knowl-
edge and not on evidence adduced before them. This was
the origin of the petty jury. The judge might cross-examine
the petty jurors to discover the reasons for their verdict, and
impanel a new jury if the reasons were unsatisfactory, but it
was not until long afterwards that the petty jurors lost their
character as witnesses and became judges on the evidence
given in open court.

Whether or not the sworn inquest was the origin of the
petty jury, in criminal cases, it was the origin of the jury
in civil causes. Henry II extended the privilege of jury trial
in the king’s courts to all of his subjects. The county and
hundred courts refused to do this. Jury trial gradually be-
came popular, and this helped the king’s courts very much
in the process of supplanting the local courts. Trespass was
tried only by jury trial. Hence the popularity of jury trial
not only tended to bring business to the king’s courts, but
to make trespass supplant other forms of action. The writ
of right (grand assize) was triable by jury or battle, at the
choice of the defendant. The assizes of novel disseissin, mort
d’ ancestor, d’arrein presentment, and utrum were triable only
by jury. The writ of ejectio firmae was a special writ in
trespass. These actions also tended to give the king’s courts
jurisdiction over the great mass of judicial business at the
time, for real property included most of the substantive law
then known. But it must be borne in mind that these civil
juries, like the criminal juries, decided facts of their own
knowledge rather then as judges of facts. This change in
the nature of the jury came only at a later time.

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Sources of Law. The sources of the law which the courts
applied in this period were the Anglo-Saxon common law,
or dooms, as developed by a French-speaking court ; the canon
law, as introduced by the Roman Catholic Church, especially
in probate, divorce, and admiralty matters ; Roman law, as
applied in maxims, method, spirit, logic, and a few principles ;
and enacted law. Any enacted law of the period was not
enacted by Parliament, for tho Simon de Montfort captured
the king and founded the House of Commons in the reign of
Henry III, it did not actually begin for thirty years. The
enacted law of England in this period was law promulgated
by the king with the advice of the Curia Regis. It consisted
of four documents: Magna Charta (1215), Forest Law
(1217), Provisions of Merton (1236), and the Provisions of
Marlborough, enacted during the reign of John and Henry
III, besides the Constitutions of Clarendon and other assizes
of Henry II. Magna Charta established the rights of the
church, the barons, freemen, and villeins, gave the guaran-
tee of due process of law, and provided for taxation only by
consent. All of the rest of the law was judge-made law,
both substantive law and procedure. The judges developed
a real common law.

Lawyers. A class of professional lawyers grew up in this
period. They were probably mostly ecclesiastics and versed
in the canon and Roman law and yet they were the chief in-
struments in moulding the new common law of England. A
particular class of lawyers, known as sergeants-at-law (mem-
bers of the Order of the Coif), had a monopoly of the practice
in the Common Pleas, and this monopoly continued until the
time of Victoria. Glanville (Henry IPs chief justiciar)
wrote the first English law book. It was in Latin and was
wholly Roman law except as it treated of legal procedure.
Bracton, an ecclesiastic but king’s justice in the time of Henry
III, wrote another treatise in Latin in which he filled in the
gaps in English case law with Roman law.

CHAPTER XI
STRICT PERIOD

The Strict Period in Anglo-American law began with the
reign of Edward I in 1272 and continued to the reign of James
I, or, to be strictly accurate, ten years into the reign of
James, when in 1613-1616 Chancellor Ellesmere triumphed
over Lord Coke, and the Period of Equity began. But, just
as the Archaic Period was towards its end becoming the Strict
Period, and for about one hundred years was almost as much
Strict Period as it was Archaic, so the Strict Period was,
towards its end, becoming the Period of Equity, and much of
the work of equity dates back more than a hundred years
prior to 1613. The Strict Period was less than one-third as
long as the Archaic Period. The Archaic Period lasted over
eight centuries, altho how much more than eight centuries
we do not know. The Strict Period lasted less than three
and a half centuries, and from this time should be deducted
almost a century occupied by the War of the Roses during
the time of the Lancasters and Yorks (fifteenth century),
when there was practically no legal development.

Characteristics* The end of the law in the Strict Period,
as in the Archaic Period, was the protection of the social in-
terest in peace (and perhaps general security). This was
done not by regulating vengeance and self-help, but by the
substitution of law for force and private warfare. The pe-
riod contributed some new antecedent rights, and some new
courts and legal procedure, but its principal contribution was
remedies. The emphasis in this period was placed upon reme-
dial rights. However, probably the chief characteristic of the
period was formality and technicality. The common law law-
yers of the day regarded the common law as completely de-
veloped. They regarded the great outlines of criminal law
and private law as fixed. All that it needed was statement
and prescission. How mistaken they were is shown by the
Period of Equity, but any generation is liable to make such a
mistake.

Plantagenets and Tudors. As has been suggested, most of
the legal development in this period occurred during the reigns
of the last of the Plantagenets and of the Tudors. There was

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almost no legal development in the times of the Lancasters
and Yorks. The greatest development occurred during the
reign of Edward I, who has been called by Chief Justice Herle
“the wisest king who ever was”, and by Reeves the “English
Justinian”. He perhaps labored more than any of his prede-
cessors to improve the judicial policy of England in all of
its parts, and his endeavors, during his long reign, were so
successful and so permanent in their effects that his reign is
memorable in the history of An glo- American law. The new
law developed in this period by the courts of equity was judge-
made law ; some novel principles in the disguise of antique
garb (circumventive fictions) were introduced evasively into
the common law, on contracts, family settlements, tenure, and
remedies ; but most of the development in other parts of the
law was due to legislation. The reign of Edward I is notable
for the celebrated statutes passed therein. Parliament was
now established. Edward I summoned the first model Parlia-
ment (kings, lords, and commons), and promised not to tax
without the consent of the subjects. The House of Commons
did not become distinct until the time of Edward III. Then
it voted supplies, but it did not legislate ; it petitioned. It
did not legislate until the time of Henry VI (1461). After
Edward I, except for the evolution of the Court of Chancery
under Edward III, legal development consisted for the most
part of the development and interpretation of the law as it
had been left by the English Justinian, until after the Wars
of the Roses. Parliament abandoned the idea of controlling
the common law. During the last part of the fifteenth cen-
tury it seemed ready to decline and fall. But Henry VIII in
the sixteenth century saved it for his despotic purposes, and
during his reign there were passed many important statutes.
After that judges soon ceased to claim the privilege of dis-
regarding statutes, but rather all law came to be defined as
the command of a sovereign.

Lawyers. A class of professional temporal lawyers grew
up in the time of Edward I. For a century previous an
ecclesiastical bar had existed, divided into two classes : advo-
cates, who pleaded, and proctors, who represented the clients.
Similar groups, few in number, now grew up around the king’s
courts, also divided into two classes : attorneys (solicitors) ,
like proctors, (1) for the king and (2) for litigants ; and

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counsel (barristers), like advocates, (1) a friend, who spoke
for litigants, and (2) sergeants-at-law in the pay of the king.
The king brought both classes under the control of the judges
and gave them a monopoly of practice. The judges were no
longer chosen from among ecclesiastics but from the body
of pleaders in the king's court. The reason for this was the
fact that the church opposed the appointment of the clergy.
But the clergy continued to serve as clerks of court. Brit-
ton, Fleta, and Horn, noted law writers, wrote their treatises
in this period. From the standpoint of the legal profession
the thirteenth century was brilliant. From this standpoint
the fourteenth, fifteenth, and sixteenth centuries were as dull
as the thirteenth had been brilliant. The common law was
committed to judges and lawyers who knew their own business
but nothing else. Under them the law became an occult sci-
ence. They were mere logicians. The sky might fall, the
War of the Roses might rage, but they continued the even
course of their argumentation. The law became full of delays
as early as Edward III. Evidence of the general dissatisfac-
tion with the administration of justice is found in the reign
of Richard II in Wat Tyler's Rebellion and the banishment
of the judges (1888). The education of the legal profession
was taken away from the universities, which trained civilians,
and intrusted to Inns of Court, which were clubs, colleges, and
trade unions combined. The Inns of Court were therefore
responsible for the kind of lawyers of the day. Maitland
says that the one thing distinctive of mediaeval England
was the Inns of Court. With Fortescue and Littleton, in the
last of the fifteenth century, the period seemed for a time to
be becoming more literary, but the hopes of this period were
not fulfilled, and the publications in the sixteenth century were
little more than alphabetical abridgments. The common law
was made tough by these common law lawyers, but perhaps
it was this toughness which saved it from the Tudors and the
Stuarts.

Language. The legal language of this period was, for stat-
utes, Norman French before the time of Richard III and Eng-
lish thereafter; and for records, Latin until 1731 in the next
period.

Rise of Equity. The one great ameliorating influence in
this period was that of the Court of Chancery, or Equity, and

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altho its strength did not become great enough to give char-
acter to the law until the time of James I, yet it did accom-
plish many reforms in both substantive law and legal pro-
cedure in the present period. For this reason it may be best
to give an account of the origin and accomplishments of the
court in this period before undertaking to describe the ante-
cedent rights, remedial rights, courts, and legal procedure of
the period in general.

When the three courts — Exchequer, Common Pleas, and
King’s Bench — were carved out of the Curia Regis, not all
of its legal business was taken away from it, or from the
Council, from which it had been separated. This legal busi-
ness consisted of appellate jurisdiction over the three courts
and original jurisdiction over matters not given to them.
This was the remnant of the King’s prerogative of justice.
This was now exercised by the king in his Council in Parlia-
ment. Parliament was composed of the magnates of the
realm ; the Council of such of these as the king especially called
to advise him in judicial business. By the time of Richard
II the Council no longer sat in Parliament, and in the course
of time the Lords (of Parliament) only heard appeals by writ
of error. The chancellor was the king’s first minister, presi-
dent of the Council, and usually a bishop, and he gradually
took on the legal work which the Council had to do. All writs
had to issue out of his office, for he was the head of the legal
department. Petitions were addressed to the king and con-
sidered by him in Council. Where they were within the com-
mon law they were met by the issuance of a writ. Where
they were not they were decided generally by the Council.
By the time of Edward III petitions began to be addressed
directly to the chancellor, instead of to the king or Council,
but it is doubtful whether at this time there was a Court
of Chancery apart from the Council. But slowly people began
to think of him as having a jurisdiction distinct from that of
the Council, common law (both civil and criminal), as well as
equity. The distinction between common law and equity
jurisdiction of the chancellor was made about the time of
Henry VI, and about the time of Henry VII the modern Court
of Chancery arose. Thus the Court of Chancery was created
out of the Council very much as the courts of Exchequer,
Common Pleas, and King’s Bench had formerly been created.

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The Court of Equity invented new procedure, new remedies,
and some new antecedent rights. After a little it was com-
pelled to give up its common law jurisdiction, and its jurisdic-
tion might have come to naught had it not been for the curious
episode of uses and trusts (antecedent rights created by
equity) and the device of the subpoena. These enabled it to
survive until the end of the present period, and then Lord
Ellesmere won out in his struggle with Lord Coke24 and equity
added an appendix to the common law. The writ of subpoena
was said to have been invented by Waltham, bishop of
Salisbury and keeper of the rolls in the reign of Richard II,
but he probably only adapted it to the use of the Court of
Chancery. This writ was so called because it commanded the
person addressed to appear in the Court of Chancery on a
certain day and answer the complaint of the plaintiff. It was
flexible and adaptable to any form, and it was efficacious be-
cause if the defendant did not appear he could be fined for con-
tempt of court. The chancellor’s jurisdiction was based on
conscience, and the doctrine of uses was based on the idea
that the person really entitled, in equity and good conscience,
to the enjoyment of property was not necessarily the person
in actual or legal possession of it. The Court of Common
Pleas would recognize seisin only as the basis of rights. The
writs of right and assizes were framed to give protection
to seisin. The Court of Chancery asked whom did the last
real owner intend to have the benefit of the property, and said
such person had the conscientious right to it tho he was not
seised of it; and made whoever had the possession recognized
by the common law give the use and benefit to the one who
had this conscientious right. Thus there came a separation
between the use (recognized by Chancery) and seisin (recog-
nized by the Common Pleas). Uses were called equitable
estates, and became fully established by the end of the reign
of Richard III. An attempt was made in the reign of Henry
VIII to abolish uses,25 and it seemed to succeed for about
one hundred years, when they were again revived in the form
of trusts. Equity developed some contract law, especially in
connection with conveyancing, where it created the bargain
and sale deed and the covenant to stand seised. In one case

24 See life of Lord Coke, infra.

23 Statute of Uses (1536). See infra.

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in the fifteenth century it decreed specific performance of
an agreement before the common law courts would recognize
an agreement.26 It also assumed jurisdiction over mortgages,
guardianship of infants, property rights of married women,
fraud, accident, and mistake. Equity took from the Ecclesi-
astical Courts much jurisdiction which the common law courts
by writs of prohibition would not allow them to exercise. Be-
fore the creation of the Court of Star Chamber equity exer-
cised some criminal jurisdiction.

Equitable Remedies. The principal remedies which equity
discovered in this period were specific performance, which
came into frequent use in the sixteenth century to enforce
performance of a promise where justice seemed to demand it;
injunction, which was first used in tort cases to restrain acts
of waste (Elizabeth’s time),27 and which before the end of
the Yorkist line was used to restrain a litigant from pre-
ceding with his action in a common law court; discovery,
whereby a defendant was compelled to testify in writing on
oath as to facts known only by him or as to what documents
he had, upon interrogatories filed in a bill in chancery, so that
the answers could be used in a common law court (at a
time when the defendant could not be compelled to testify) ;
and account, which largely supplanted the common law ac-
tion of account.

Equitable Procedure. The procedure in chancery was en-
tirely different from that at common law. All proceedings
were in English. No writ was required, because the chancellor
exercised the prerogative of the king to grant relief as a
matter of grace. The proceedings were commenced by a peti-
tion, afterwards called a bill. This was the first pleading.
If it disclosed a case, a subpoena was issued to the defendant
to appear and answer on oath. This answer soon was in
writing. Hence the pleadings were written. They did not
produce an issue. No jury was used. The evidence was taken
in the form of written affidavits. This procedure was taken
by the chancellors from the Ecclesiastical Courts.

For interlocutory work the chancellor had the assistance
of a body of clerks. Chief of these was the master of the
rolls, whose primary duty was to take care of documents and

26 Cokayn v. Hurst, in “Select Cases in Chancery”, 10 Selden Soc., No. 142.

27 Anonymous, Moore 554, pi. 748.

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93

to record judgments, but sometimes the chancellor delegated
to him the hearing of causes in the absence of his superior.
Because of this notion that he could sit only in the absence
of the chancellor, when Lord Nottingham (Charles II) sat
every day all day, the master of the rolls sat only from six
to ten in the evening. A statute of 1833 enabled him to sit
all day. Other clerks were called masters in the time of
Edward III. Cardinal Wolsey (Henry VIII) used to refer
demurrers to masters. Lord Badon (James I) stopped this
practice, but inaugurated the practice of referring the taking
of accounts to a master.

The social interest in general security, which was em-
phasized in this period, was protected under the egis of the
common law lawyers by the old law developed in the Archaic
Period with some changes in the direction of certainty in the
law of antecedent rights and the law of legal procedure, and
with many additions to the law of remedies in the form of new
writs. The law of the Strict Period was essentially a law
of writs, and was as technical as the writs.

Criminal Law. A few changes in criminal law occurred in
this period. Imprisonment for debt was introduced. Edward
I enacted a law against sedition. The law of treason was
modified by the statutes of treason of Edward III so as to
cut the offense down to compassing or imagining the death
of the king, queen, or their eldest son; violating the queen,
the king’s eldest unmarried daughter, or his eldest son’s wife ;
levying war against the king in his realm or adhering to
his foes; counterfeiting the king’s coin or seal; and slaying
the chancellor, treasurer, or judges while in the discharge
of their duty. During the Wars of the Roses this statute
did not afford much protection, for if a man pleaded that he
had been supporting the king de facto he was hanged for not
supporting the king de jure. Henry VII assented to an act
by which treason was defined as an offense committed only
against the king de facto.

Real Property. While real property had attained most of
its development before the time of Edward I, some important
changes in the law occurred during his reign and the re-
mainder of the Strict Period. A number of celebrated statutes
were enacted during the reign of Edward I. One of the most
important was the Statute De Donis, (1285), which created

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the estate tail. Prior to this statute, where the feoffor tried
to keep land in the family of the feoffee by a limitation to the
feoffee and ‘‘the heirs of his body”, and if there was no family
to have the land revert to the feoffor, the lawyers had in-
terpreted this to create a fee simple on condition that he have
heirs of his body. The Statute De Donis reversed this inter-
pretation of the lawyers, so that the foeffee’s estate was in-
alienable. It was passed in the interest of the great land-
owners, who wanted to tie up the title to land so that no
one could sell it. For a period of nearly two hundred years
this statute was obeyed and estates in England became quite
generally entailed. Then the lawyers again found a way to
circumvent the big land-owners. They did this by devices
known as warranty, common recovery, and fines, which were
really collusive suits allowed by the judges, it is said, at the
instance of the king himself. For example, in case of a com-
mon recovery, if an estate had been granted to A and the
heirs of his body and A wanted to break the entail, he would
sell the land to X ; X would then sue A, claiming the land ;
A would admit his claim; and the court would enter judg-
ment that the land belonged to X and this judgment could
not be disturbed after a year and a day.

A second most important statute of the time of Edward I
relating to real property was the Statute Quia Emptores, en-
acted in 1290, which abolished subinfeudation by providing
that if a lord granted a new manor his tenant should hold
not of him but of the lord paramount above him. In this
reign were also passed two statutes of mortmain forbidding
the holding of land by religious persons and corporations, be-
cause they were not liable for the services and privileges due
the lord; and the Statute of Gloucester (1278), which made
tenants for life, curtesy, dower, and tenants for years liable
for waste.

Before Littleton’s time (Henry IV) pure villeins had become
tenants by copy of court roll according to the custom of the
manor so that from being tenants at will they had an alien-
able interest in the land, and if they were ejected by their
lord they could maintain trespass against him.

Uses. By the time of Richard III equity had developed the
equitable estates called uses. These equitable estates were
popular because thereby the tenants could avoid their feudal

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dues, make the property subject to will, create new convey-
ances, free estates of dower, and avoid the Statutes of Mort-
main. As a consequence a campaign against uses was started
by the king, lords, wives, and heirs, and they finally pro-
cured the passage of the celebrated Statute of Uses in 1536.
The object of this statute was to destroy uses. It undertook
to do this not by making the uses void but by converting the
uses into legal estates, and making the holder of the legal
title (seisin) a mere conduit for the title. The statute did
not apply to leaseholds, copyholds, active trusts, or to second
uses. Hence the lawyers within a hundred years discovered
that all that was necessary to keep alive the old law of uses
was the device of a second use. This revived the equitable
uses, but after this time they were known as trusts instead
of uses. However, if the device was not employed, the statute
would operate. The consequence was that the statute not only
did not abolish uses, but it transferred into the common law
all the equitable liberality in regard to estates and conveyanc-
ing. The common law would not permit a fee simple to be
cut down by a succeeding estate which would lap back on it;
nor a gap, when the seisin would be in abeyance. Equity
permitted both of these things in what were called shifting
uses, resulting uses, and springing uses. Since the statute
made the equitable estates legal these estates became good
common law estates, and were called conditional limitations.

Suppose A enfeoffed X and his heirs to the use of B for
life, and one day after B’s death to the use of C and his heirs.
At common law, prior to 1536, X and his heirs would have
had an estate in fee simple; and if A had enfeoffed B for
life, instead of X and his heirs, an estate to begin one day
after the termination of this life estate would have been void
and A would have had a reversion in fee. In equity, prior
to 1536, X and his heirs would have had the legal title, B
would have had an equitable life estate, A would have had
an equitable fee simple subject to a condition by way of re-
sulting use, and C would have had an equitable fee simple to
take effect as a springing use. After the Statute of Uses
B would have had a life estate, A a fee simple on condition,
and C a condition limitation in fee simple.

Wills. By the Statute of Wills, passed in 1540, devises of
land by a man’s last will were permitted, as bequests of per-
sonalty had been permitted from the earliest times.

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Bankruptcy. The law of bankruptcy took its rise in the
time of Henry VIII by virtue of a statute of bankruptcy, but
tiiis statute was for the aid of creditors not debtors.

Contracts. The modern consensual contract had its origin
in this period, altho most of its development has occurred dur-
ing subsequent periods. During the Archaic Period, the only
promises enforced were the promise under seal, and the de-
livery-promise and the surety-promise, — the former by the ac-
tion of covenant, and the latter by the action of debt. Simple
oral promises were not enforced. This defect in the law was
remedied by the common law courts during the Strict Period —
probably not for the sake of reform but to keep jurisdiction
over contracts away from the chancery court — thru the de-
velopment of the action of special assumpsit, an action on the
case in the nature of deceit (or in the nature of trespass ac-
cording to some authorities), and the action of general
assumpsit, an action on the case in the nature of debt. As a
result of the latter assumpsit became both concurrent with
debt and available for the enforcement of inferred promises,
and as a result of the former, oral promises as well as written
became enforceable provided they conformed to certain techni-
cal requirements. Special assumpsit grew out of actions on
the case for the tort of negligence and actions upon the case
for deceit upon a false warranty. The action of special
assumpsit was allowed in the time of Henry IV where a de-
fendant had undertaken (assumpsit) to do something for the
plaintiff and afterwards was guilty of misfeasance, but it
was not until the time of Henry VII that it was allowed for
an undertaking followed only by nonfeasance.28 By the end
of Elizabeth’s reign the action had become of general use.

The common law methods of conveyance under the feudal
system were the feoffment, or livery of seisin, to transfer as
estate of freehold to a stranger to the original grant by one
who was in possession of the land ; an oral agreement and entry
to create estates less than freehold in possession; and deed
to create estates, either freehold or less than freehold, by one
who was not in possession (reversioners and remaindermen).
During the Strict Period, in connection with the development
of uses, equity also developed two new methods of conveyance,
the bargain and sale deed where a valuable consideration was

28 Thorne v. Deas, 4 Johns (N.Y.) 84.

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97

paid, and the covenant to stand seised where there was no
other consideration than relationship of blood or marriage, in
both of which cases the man seised of an estate of freehold
covenanted to stand seised of the land to the use of another,
as in the declaration of modern trusts. After the passage of
the Statute of Uses these equitable forms of conveyance be-
came common law forms of conveyance.

Agency* In this period the law of representation, or
agency, rested upon the basis of commanded acts,29 that is,
the master in torts and crimes and the principal in contracts
was liable only where the servant or agent did what he was
told to do, or his act was ratified afterwards. The ancient
law, which made the master absolutely liable for the acts of
his slaves and free members of his household, disappeared
after the Conquest with the disappearance of slavery; it did
not apply to the acts of Villeins : and the more modern doctrine
of representation had not as yet developed.

Bailments. The bailee’s liability to the bailor in this period
was probably that of absolute insurer,30 owing to the fact that
the remedy and the only remedy given the bailor against the
bailee was detinue, under which the theory was that the bailee
owed to the bailor the chattels bailed and he had either to
return them or pay for them. The liability of innkeepers for
injury to guests did not arise until as late as 1584.

Torts. In the law of torts, the rule in this period was
absolute liability. The tort law, like criminal law, was written
in blood. The law did not ask whether an act had been com-
mitted in self-defense, but only whether the act had been com-
mitted. If it had, the guilty party had to make reparation.
If he thought he had a defense, he had to sue in an independent
action. This was the Strict Period of Anglo-American law!
Practically the only tort known to English law prior to the
sixteenth century was the tort of trespass. There was no
redress for negligence, nuisance, slander, libel, and deceit until
the sixteenth century. Other torts, like malicious prosecu-
tion, alienation of affections, violation of copyright, and pro-
curing breach of contracts, were not recognized at all in this
period.

Remedies. The thing which the common law emphasized
in the Strict Period was remedies, which meant writs, for if

29 7 Harv. L Rev. 330, 332, 335, 384.

30 Southcotes Case, 4 Coke 83 b.

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there was no writ there was no remedy. The substantive law
of the period was really the result of writs, or remedies, rather
than their cause. The great common law remedy always has
been damages. The writs in this period which gave the right
to damages were debt, covenant, deceit, trespass, and ac-
count— all continuing from the Archaic Period ; case available
in the fifteenth century ; and trover, trespass on the case, and
assumpsit available in the sixteenth century. The latter were
specialized forms of case. Trover was a specialized form of
case in the nature of detinue, devised for the purpose of giving
damages for the conversion of chattels, at first where the
defendant had found them but soon in all cases. Trespass on
the case was an action on the case in the nature of trespass,
which gave a right to damages for negligent omissions and
for injuries caused by independent agents of harm, inanimate
things, etc. Special assumpsit was an action on the case
in the nature of deceit for the recovery of damages for breach
of an express promise. General assumpsit was an action on
the case in the nature of debt for the recovery of a definite,
liquidated amount of money. It was a sort of residual action
in the realm of contracts. Case was the corresponding
residual action in the realm of torts. The various actions on
the case were the creation of the clerks in chancery acting
under a statute of Parliament enacted in 1289, authorizing
them to issue writs in consimili casu with old writs. It is not
clear why this statute was passed, but one explanation is that
it was to enable the common law courts to compete better
with the court of chancery.

The ordinary common law writs of the Strict Period which
gave other remedies than damages were detinue, replevin,
and ejectment. These were all restorative remedies, the first
two for chattels, and the last for land. Replevin originally
lay only against one who had made a wrongful distress and
was holding the goods distrained to compel the payment of
a debt. At first if the defendant set up ownership, the re-
plevin had to be dismissed and the plaintiff had to resort to
the appeal of larceny or trespass. In Edward Ill's reign it
was held that this claim had to be made before the sheriff
had taken the goods. A little later the plaintiff was able to
recover the goods in replevin in spite of defendant’s claim.
Still later replevin became concurrent with trespass, but per-

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haps not until the nineteenth century. In the Strict Period
at least it was confined to distress cases. Ejectment was
originally an action in personam called ejectione firmae by
which tenants for years could recover possession against
ejectors not claiming thru the landlord. This action was free
from the technicalities of the real actions, and gradually came
into use to escape them by the device of a formal entry and
lease to a tenant so that he could sue in ejectment after he
was ousted by the claimant in possession. By Elizabeth’s time
ejectment had almost supplanted the real actions. The next
step in the development of ejectment was the use of fictitious
persons as the tenant plaintiff and defendant casual ejector.
At first no notice was required to the tenant in possession
tho the casual ejector was a friend of the plaintiff and a
stranger to the property; but later the rule was established
that the tenant in possession had to be given notice and by
the time of the Protectorate the courts required him as a
condition to being admitted to intervene to admit the lease,
entry, and ouster, leaving the question of title the only ques-
tion to be litigated. But the courts held that the judgment
in ejectment was not binding between the real parties because
in form between fictitious. The whole scheme was an ab-
surd make-believe as silly as a nursery game, but it well
illustrates the character of the law in the Strict Period.

Other illustrations of the rigidity of the law in the Strict
Period are found in the law of the contract under seal.31
The common law regarded this not as evidence of the contract
but the contract itself. Accordingly, if the obligee had lost
the instrument, or it was destroyed, he had no action, for
a Year Book judge said, “If the specialty is lost the whole
action is lost.”32 Likewise if an obligor had executed an
instrument because of fraud, or for immoral purposes, or
upon an assumption in the offer which was not true, or even
if he had once paid the same, if he had neglected to take a
release or have the instrument destroyed, he was helpless.
Such technicality cried for relief, and it was such technicalities
which brought the Court of Chancery into existence. The

31 Still further illustrations of the strictness of the law of contracts of the Strict
Period are found in the law of that period as to conditions ; as to discharge by sur-
render by accord, by payment by a stranger, by alteration, by merger, and by arbi-
tration ; as to assignment ; and as to the right of third party beneficiaries.

32 Y.B. 24 Ed. Ill, p. 24, pi. 1.

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evils described above were corrected by equity in the next
period.

In addition to the ordinary common law writs above named,
there were the extraordinary legal remedies of mandamus,
quo warranto, habeas corpus, and prohibition. While the
writs of habeas corpus and prohibition, at least, had been in-
vented in the Archaic Period, there is no evidence of the use
of any of them before the time of Edward I. Mandamus,
now a writ of right, was originally a writ of royal prerogative
issued by courts of superior jurisdiction (King’s Bench) and
directed to subordinate courts, corporations, and the like,
commanding them to do something specified. Quo warranto
was a writ commanding a person to show by what authority
he exercised an office or franchise, to prevent the illegal exer-
cise thereof. Prohibition was a prerogative writ issued by a
superior court (King’s Bench) to an inferior court or tri-
bunal to prevent the latter from usurping or exceeding its
jurisdiction. Habeas corpus has already been defined as a
remedy to relieve against the illegal restraint of personal
liberty. All of these remedies were very effective where avail-
able, but with the exception of habeas corpus they were not
available for private individuals against private individuals.
Private individuals had need of such remedies. But this de-
fect had to be supplied by equity. Mandamus is like specific
performance, except that it concerns obligations growing out
of official station or duties imposed by law. Prohibition is
like injunction, except the latter is directed to parties while
the former is directed to the court, or tribunal charged with
judicial powers.

Most of the equitable remedies were developed after the
Strict Period, but two equitable remedies and those the two
most important were developed and came into use in this
period. They were specific performance and injunction. In-
junction is a remedy to restrain the doing of some act, or to
require the restoration of a former condition, where the rem-
edy of damages is inadequate. Specific performance is a rem-
edy to compel the fulfillment of a valid promise to do a certain
thing, where the remedy of damages is inadequate, and the
contract is free, fair, and capable of being presently executed.

Courts. All the courts of the Archaic Period continued
thru the Strict Period. An interesting thing in connection

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101

with the regular courts was the way they extended their ju-
risdiction. The Exchequer tried common pleas. It extended
its jurisdiction thru the writ of quo minas “whereby he (a
debtor of king) is the less able to satisfy us the debts which
he owes us” because defendant owed the debtor (plaintiff).
The King’s Bench extended its jurisdiction so that it tried
every kind of action except the old real actions by the bill of
Middlesex and the writ of latitat. The King’s Bench had the
right to try cases of trespass, and after a defendant was
in the hands of the marshal it proceeded to hear any complaint
against him. If the defendant sued in trespass in Middlesex
came into the hands of the officer, trespass was dropped and
an action of debt brought. If the defendant did not live in
Middlesex the sheriff returned that he was not found in his
bailiwick and a writ of latitat was issued to the sheriff of
the county where he lived to bring up the defendant, on the
theory that he was a fugitive and ‘had run away from Middle-
sex. Besides these three law courts, there was created in
1337 an appellate court, called Exchequer Chamber, from the
common law side of the Exchequer. In 1585 this court was
empowered to try appeals from the King’s Bench. Before
this it had heard appeals from the Common Pleas. The
judges in this court yrnre the barons and justices.

The Merchant Courts continued to develop the law mer-
chant. The chief Maritime Court of the lord high admiral
of England, who delegated his power to the judge of the Court
of Admiralty, dates from Edward III. It had civil jurisdic-
tion over contracts made at sea (but not charter parties made
on land), seamen’s wages earned at sea, and flotsam, jetsam,
and salvage, but not of wreckage; and for a time it had crim-
inal jurisdiction.

The Court of Chancery, which grew up in this period, has
already been explained.

The judges of the assize were developed in the time of Ed-
ward I. Before this time the justices itinerant confined them-
selves to pleas of the crown and various real actions known
as assizes, but after this they went on circuit by virtue of a
royal commission of gaol delivery, oyer et terminer, assize,
and nisi prius. The writ of venire facias had ordered the sher-
iff to summon a jury in a common law case to appear at
Westminster. The statute of Westminster II, chapter 30, in-

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serted in the venire facias the words nisi prius (unless before)
that day the justices appointed to take assizes shall come into
his county. This is the origin of the expression that judges
trying civil actions are “sitting at nisi prius” .

Edward III set up the tribunal of the justice of the peace.
Long before there had been in every county certain men, con-
sisting of the sheriffs, king’s constables, and bailiffs, and a
few others, bound to preserve the peace. They had been
called conservators of the peace. They could arrest disturbers
and hold them in prison or bail them. Edward III added to
the ex officio conservators men specially appointed by the
crown. Their jurisdiction was soon extended. They were
empowered to receive accusations and commit the accused
awaiting the coming of the judges of the assize. Late in the
reign of Edward III the keepers of the peace, now called
justices of the peace, were empowered to take indictments and
to bind people over to keep the peace, and to hear and deter-
mine at the king’s suit all felonies and trespasses done in
the county. From the very beginning of the office the Court
of King’s Bench assumed appellate jurisdiction by means of
certiorari and mandamus, altho the first mandamus in the
books directed to justices of the peace was in the reign of
Edward IV. An act of Edward IV wholly denuded the Sher-
iff’s Tourn of criminal jurisdiction and gave it to the justices
of the peace sitting in Quarter Sessions, and the reason given
was the corruption of the sheriffs.

In the time of Henry VII there was established another
court known as the Star Chamber and for a time almost as
important as the Court of Chancery. The Star Chamber was
the “king in council”. It, like the Court of Chancery, was
carved out of the residual jurisdiction still left in the Council
after the formation of the common law courts, and exercised
over criminal matters a power analogous to that exercised
by chancery over civil. Because of the corrupt practices of
the sheriffs, and because of the difficulty of obtaining verdicts
against such men as the Percys and Fenwicks in Northumber-
land, who kept armed desperate retainers in the courtroom,
the Privy Council had been in the habit of interfering to pre-
vent the perversion of justice; and finally in 1488 Henry VII
procured the establishment of a regularly constituted court
by an act of Parliament. The court was composed of the

Willis: Anglo-American Law 103

chancellor, treasurer, keeper of the privy seal (or two of
them) , with a bishop and a temporal lord of the Privy Coun-
cil, and the two chief justices of the King's Bench and Com-
mon Pleas (or two other justices in their absence), and it
had authority to call before it and examine all those charged
with any misbehavior and to punish them on conviction. It
also exercised a certain amount of civil jurisdiction and ad-
miralty jurisdiction by and against aliens and corporations.
Its procedure was taken from the canon law. It was a law
unto itself as to substantive law. At first it was essentially
a court for the poor against the rich and powerful, but under
the first two Stuarts it became a cruel political court for di-
vines and king. The great complaint against it was its
inquisitorial procedure. It was abolished in 1641 on account
of its manifold abuses and the King's Bench took over its
jurisdiction. Its procedure perished with it, but its work in
reforming the old criminal law remained.

Somehow or other, in the Court of Star Chamber and the
Court of Chancery, England stumbled onto a scheme for rec-
onciling permanence with progress. Equity took its dominant
substantive law ideas from the common law ; imitated it where
possible and departed from it to Roman law, etc., where com-
mon honesty required it; under the Tudors was not bound
by precedents ; and thus composed an appendix to and pre-
served the old private law. The Star Chamber in the same
way supplied the deficiencies of the old mediaeval criminal
law and thus preserved it. In thi^ way the common law
passed scatheless thru the critical sixteenth century, and was
ready to stand up against tyranny in the seventeenth. The
Star Chamber and Chancery might have been dangerous to
political liberties, yet but for them the old law would have
utterly broken down for its badness, and might have been sup-
planted by the Roman law or no law but despotism.

During the reign of Henry VIII a great number of new
courts were created, such as the Court of Augmentation for
monasteries and abbey lands ; the Court of Wards and Livery
with jurisdiction over the king's wards and their estates; the
Court of Requests, a court of equity for poor suitors ; the Court
of the Marches of Wales; and the High Court of Delegates
with appellate jurisdiction over the Ecclesiastical Courts; and
in Elizabeth's reign was established a Court of High Com-

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mission for the trial of heretics ; but today these courts have
little but antiquarian interest.

Legal Procedure. Under Edward I the practice arose of
putting all indictments in writing, and Edward III required
the indictment to state specifically the acts which were going
to be alleged as criminal, from which uncertainty in an in-
dictment has remained a fatal error to this day. Written
pleadings were introduced in the common law courts in the
reign of Henry VIII. There was a gradual differentiation of
pleading and practice from proof. The jury began to be
judges of the fact and witnesses were employed in the six-
teenth century. Rules of evidence began to form. The rules
in regard to competency and disqualification, privilege and
privileged communications, rule for attorneys, and com-
pulsory attendance of witnesses came in during this period.

CHAPTER XII
PERIOD OF EQUITY

The third period in the historical development of Anglo-
American law began with the triumph of Lord Ellesmere,
chancellor, over Lord Coke, chief justice of the King’s Bench,
in 1613-1616, and it continued thru the life of Lord Mans-
held, who died in 1793, altho many characteristics of a fourth
period began to manifest themselves as early as the publica-
tion of Blackstone’s Commentaries in 1765. Thus the period
lasted nearly two centuries, roughly the seventeenth and
eighteenth centuries. This was a short period as compared
with the Strict Period which lasted over three centuries
(roughly the fourteenth, fifteenth, and sixteenth), and the
Archaic Period which lasted over eight centuries (roughly
fifth to thirteenth inclusive), but a long period as compared
with the periods by which it was to be succeeded.

Characteristics. The end of the law in this period was the
protection of morals. This social interest was more impor-
tant than general security. The period marked a revulsion
against the strictness and certainty of the Strict Period, and
it was characterized by justice without formality. Duties
were emphasized more than remedies. The social interest
referred to was protected, for the most part, by a reform
and development of the substantive law of legal capacities as
found in the great subjects of crimes, torts, property, con-
tracts, and public callings. It was also protected to some
extent by new remedial rights developed by equity. But there
was little or no protection by new courts and reforms in
legal procedure, altho some brave attempts of this sort were
made. The reforms and development of the law were car-
ried forward by equity, legislation by Parliament, and some
great common law judges at the head of whom stands Lord
Mansfield.

Legislation. The Restoration was a date almost as im-
portant as the date of the quarrel between Coke and Elles-
mere, for it promised a comprehensive legislative reform of
the law, especially of legal procedure, but the people had be-
come so tired of change and confusion that the promise was
not fully realized. Some important reforms of substantive law

(105)

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were instituted, but an elaborate attempt to reform legal pro-
cedure finally fizzled out, and the people laid aside their plans
and returned to the institutions of their fathers. However,
what was done was so good that the Stuart period has been
called one of “good legislation and bad government”. Another
important date in the history of legislative reform is that of
the Revolution of 1688. The Stuarts had claimed the divine
right of kings to rule and that the people obtained their lib-
erties from the king. The Commons fought this claim and on
the Restoration forced a second grand charter from Charles
II. The Revolution subordinated the Crown to Parliament
and made the sovereign and his ministers anxious to comply
with the wishes of the nation. In choosing William and Mary
the people revived the Anglo-Saxon custom of choosing the
king, and gave a death blow to the notion of a “personal mon-
archy”, altho George III revived it for a time. They got a
third great charter, and the Commons got control of the
purse and the sword. The right to reject bills has never
been exercised in England since Anne, who refused to assent
to the Scotch Militia Bill in 1707. Direct legislation then
became a normal means of altering the law.

Great Lawyers. Altho most of the common law lawyers
had the same attitude in this period which they had had in
the Strict Period, there were a few notable exceptions of men
who were imbued with the spirit of equity and who struck
some great strokes for reform. Sir Matthew Hale laid the
foundations for the law of public callings. Lord Holt sub-
stituted the Roman law of bailments for the English law of
bailments. Erskine introduced some reforms into criminal
law. Jeremy Bentham, the father of the legislative reform
movement, began his great work in this period. Lord Mans-
field alone worked great changes in the law of practice, com-
mercial law, and contracts.

Triumph of Equity. The reign of James I marks an era in
the history of the Chancery Court. From Edward III to
Henry VII all the chancellors had been ecclesiastics. Henry
VIII appointed a lawyer, Sir Thomas More, who made a great
reputation in the office. Following More came churchmen,
politicians, and lawyers promiscuously, until Ellesmere, since
when all the chancellors have been lawyers, including such
great men as Cowper, Harcourt, King, Talbot, Hardwicke,
Nottingham, Campen, Thurlow, and Loughborough. Elies-

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107

mere, saturated with common law notions, began — whether for
better or worse — to reduce the chancery rules of procedure to
a system as technical as that of the common law, and in mat-
ters of substance to follow precedent as common law judges
did. This practice was continued under Lord Nottingham
and completed by Lord Eldon in the nineteenth century, when
equity became as rigid and technical as the common law.
Meanwhile equity continued the work it had begun under the
Tudors, and Lord Ellesmere was largely responsible for its
triumph. Ellesmere granted an injunction ordering a plain-
tiff in Coke’s court, who had obtained a judgment by the
trick of enticing defendant’s witnesses into a beer-house while
the action was being tried, not to proceed with his judgment.
Coke advised plaintiff’s attorney to prosecute defendant and
his counsel under a statute forbidding the impeachment of
the judgments of the King’s Court in another court; and
Coke also tried to persuade a grand jury to indict them. The
grand jury refused to expose themselves to the indignation of
Ellesmere. Then Coke announced that he would refuse to
hear any counsel who had presented such a bill in equity.
Ellesmere appealed to the king. The king consulted with
Bacon, a life-long enemy of Coke, and other lawyers. They
favored Ellesmere because they said the statute Coke invoked
.referred to foreign courts and because of a practice of sixty
years in favor of such injunctions, and the king adopted their
opinion. Henceforth there was no question of the suprem-
acy of equity over the common law, and before the end of
this period the chancellors above referred to introduced many
new principles into Anglo-American law.

Criminal Law. Some reform of criminal procedure in cases
of treason was brought to pass, but little change in the sub-
stantive law of treason occurred. The judges twisted the
Statute of Treason (Edward III) so that those were found
guilty of imagining the king’s death who agitated in favor
of a new Parliament and who pulled down a number of dis-
senting meeting-houses. As a result of the latter decision the
Riot Act was passed in 1714 making the assemblage of twelve
persons riotously in a public place an unlawful assemblage,
and if they refused to disperse within one hour after the read-
ing to them ‘‘of the Riot Act” they were guilty of felony with-
out benefit of clergy.

Seditious libel came into prominence in the time of James

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I, and became odious under the iniquitous judges Scroggs and
Jeffreys. Scroggs held that to publish any news at all was
unlawful, and Jeffreys held that gossipy letters containing
the political rumors of the day were libelous. Elliott and
others were imprisoned for speeches in Parliament. Prosecu-
tions continued to be frequent until towards the end of the
eighteenth century. The common law judges held that the
only function of the jury was to find whether or not the pris-
oner published the words and that they referred to the persons
they were said to refer to ; and that whether they were crim-
inal or not was for the court. They held that truth was no
defense. Even Lord Mansfield did nothing to reform the law
of sedition. But a practitioner by the name of Erskine, a
barrister of great eloquence, came to the defense of a great
number of those who were being prosecuted, and it was largely
because of his efforts that the law was reformed. He con-
tended for the right of a jury to bring in a general verdict,
and insisted that criminal intent makes the crime, and that
criminal intent was a matter of fact and therefore for the
jury. He did not convince the judges, but he did convince
the country and Parliament, and as a result there was enacted
in 1792 Fox’s Libel Act, which established the principle for
which Erskine had been contending and changed the rule
which had been laid down by the King’s Bench for a hundred,
years. However, truth was not made a defense until 1843.

In 1677 an act was passed abolishing punishment of death
for heresy. From the time of Henry IV sheriffs had been
obliged to burn heretics turned over to them by Ecclesiastical
Courts, but after this statute heresy could be punished only
by ecclesiastical punishments.

During this period and long prior thereto there had been
a great many capital crimes, but in practice executions had
been rare except for treason, homicide, and other grave of-
fenses. This was largely due to the fact that many offenders
obtained the “benefit of clergy” in other cases than treason
by showing that they could read or write their names and thus
escaped the jurisdiction of the King’s Bench. But in 1691
and succeeding years the benefit of clergy was taken away in
one case after another so that the criminal law became very
severe and harsh. One of the worst features of the criminal
law was that a person convicted of a felony, without benefit

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109

of clergy, was liable to forfeiture and attainder as well as
capital punishment, and this feature of the criminal law was
not remedied at all until 1813 and then not as to prisoners
convicted of treason or murder.

Real Property. The law of real property, developed in the
Archaic Period and made more strict and certain in the Strict
Period, finally became almost unbearable. The burdens of
tenure in chivalry were severely felt, and the plight of the
king’s wards was especially unfortunate. We have already
explained how equity undertook to modify the law of real
property by the introduction of uses and new forms of con-
veyance and how the attempt by the common law lawyers to
defeat this undertaking by the Statute of Uses was defeated
by their own holding that the statute did not apply to a use
on a use. This was the opportunity for the Court of Chan-
cery, and within one hundred years after the passage of the
Statute of Uses it was enforcing uses as extensively as it had
before the statute, only now the uses enforced by equity were
known as trusts to distinguish them from the first use exe-
cuted by the statute. A great many other reforms of real
property law were introduced in this period, most of them
by means of legislation. One of the most important things
done in the first year of the restoration of Charles II was the
destruction of feudal land law by a statute passed in 1660
abolishing all military tenures except grand sergeantry, and
making the king’s revenue thereafter come from taxation.
By this reform the only incidents of tenure left were rents,
reliefs, and escheats, and if there was no rent there was no
relief. Homage had become obsolete. Aids had been abol-
ished. Fines went with quia emptores. Wardship and mar-
riage never applied to socage tenure. The Court of Wards
and Liveries was also abolished. The celebrated Statute
of Frauds, passed in 1677, had provisions requiring all wills
of land to be in writing, signed by the testator and witnessed
by witnesses in his presence; conveyances of freeholds by
delivery of seisin to be evidenced by a document, signed by the
feoff er or an agent authorized in writing; and all leases to
be in writing except those not exceeding three years. In the
time of Queen Anne registries of title were established in
Yorkshire and Middlesex, not of actual ownership but of
transactions affecting title. Something of this sort seemed

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to be needed, since the Statute of Enrollments of bargain
and sale deeds had been avoided by the deed of lease and
release, but the scheme did not prove a success. In the time
of George II the Statute of Mortmain was modified so as to
permit gifts inter vivos and check deathbed donations to cor-
porations, and a statute was passed giving a landlord the
power to sell goods distrained for rent. Otherwise the law
of real property remained as it had been codified by Lord
Coke.

Personal Property. In 1670 was passed the Statute of Dis-
tributions, said to have been drafted by Edward Hyde, Earl
of Clarendon, for the administration of personalty in case of
intestacy, and this statute has been the basis for the distribu-
tion of personalty in Anglo-American law ever since. In
1623 was passed the Statute of Monopolies making void all
existing monopolies and patents except those granted to the
first inventor of some new manufacture to be used within the
kingdom, and they were cut down to twenty-one years, and
as to the future were to be given for fourteen years or under.
This act is the foundation of the present patent laws of the
world. In 1709 was passed a Copyright Act. In the seven-
teenth century the right to the exclusive publication and print-
ing of a book had been recognized as a common law right,
but it had proven practically worthless because of difficulty
of proving damage and because defendants were liable to be
paupers. The Copyright Act abrogated the common law, re-
quired record of title, gave the author the exclusive right of
publication for fourteen years after 1710, with a right to
renew for another fourteen years, and gave the power to cer-
tain dignitaries to regulate the price if unreasonable. This
act was repealed in 1842, but was amended and revived again
in 1911.

Contracts. The law of contracts continued to develop thru-
out this period. Bilateral agreements were enforced thru
special assumpsit in the seventeenth century as unilateral had
been enforced in the sixteenth ; and the quantum counts were
developed thru general assumpsit in the seventeenth century
as the indebitatus counts had been developed in the sixteenth
century. Lord Mansfield laid the foundation for the law of
implied conditions,3" and developed whatever notions of moral

33 Kingston v. Preston, 2 Doug. 689.

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111

consideration are found in Anglo-American law. Equity in-
troduced into contracts the law of assignability of rights by
specifically enforcing a covenant not to revoke a power of
attorney given the assignee. The Statute of Frauds already
referred to had a number of provisions covering contracts,
in certain cases requiring writing, signed by the party to be
charged, and in one case (sales) requiring either writing, or
receipt and acceptance of part of the goods, or part pay-
ment. Lord Mansfield also in this period incorporated into
the law of England the law merchant, with its important
topics of insurance and negotiable instruments, and further
developed their principles; but their development continued
into the nineteenth century, and for this reason the United
States contributed something to the Anglo-American law of
the subjects. Equity also, by intervening in cases of fraud,
mistake, accident, etc., developed the voidability of contracts
for various vitiating circumstances. In 1710 an act was
passed making void securities given for money lost in gam-
bling.

Mortgages. At about the beginning of the fifteenth century
the modern form of mortgage in the form of a conveyance
in fee upon condition, title to revert to the mortgagor in case
of payment but to become absolute in case of nonpayment on
the due day, became the regular form of mortgage. The law
courts construed the condition literally, so that the mortgagor
not only lost his property but still owed his debt. Equity
began to relieve from forfeiture where there had been an ac-
cident, and later mere negligence, and finally wherever there
was a penalty. This was the case in the common law mort-
gage. The right of the mortgagor to redeem in equity was
established by the time of James I. Equity regarded the
mortgagor as the true owner, and the mortgagee as holding
the title as security. The development of this doctrine re-
sulted in making mortgages a branch of equity. The modern
lien theory of mortgages is really the adoption at law of the
equity view of mortgages.

Agency. Liability of principal and master in the law of
agency continued upon the basis of commanded acts until
1689, and thereafter on to the nineteenth century upon the
basis of a presumption of a command.34

34 Turberville v. Stamp e. Comb; 459.

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Bailments. The law of bailments, with the exception of
innkeepers and common carriers, was largely, because of the
work and influence of Lord Holt, removed from the founda-
tion of absolute liability of bailees to that of liability for neg-
ligence only.35

Public Callings. The law of public callings dates from this
period, and no one else is entitled to so much credit as Lord
Hale for its origin.36 He suggested a test for determining
a public calling, and laid down some if not all the fundamen-
tal obligations which today are imposed by law upon those
engaged in public callings, to wit, to serve everybody of the
class of service, with reasonably adequate facilities, for rea-
sonable compensation, and without discrimination. In this
period the number of public callings became many, and in-
cluded not only innkeepers and common carriers but many
other trades, professions, and businesses, some of which are
no longer classed as such.

Torts. In this period there developed the new torts of
malicious prosecution, alienation of affections, and unauthor-
ized printing of unpublished works ; and the tort of deceit was
revived.

Political Privileges. The Corporation Act (1661) excluded
from office all but Church of Englanders. The Fourth Act
of Uniformity (1662) established the Book of Common Pray-
ers: Puritan doctrines were forbidden. The Test Act
(1673) excluded Catholics from office and thereby broke up
the Cabal.

Remedies. The equitable remedies of specific performance
and injunction which had come into use in the Strict Period
flourished in the Period of Equity, and in addition equity in-
vented the following new remedies : interpleader, reformation,
cancellation and rescission, assignment of dower, establish-
ment of boundaries, partition of land and chattels, bills of
peace; bills quia timet (to which have been added in modern
times the statutory suit to quiet title and the suit to remove
cloud on title) , redemption, foreclosure, marshalling securities,
creditors’ suits, appointment of receivers, partnership bills,
contribution, exoneration, subrogation, and relief against ac-
tions and judgments, besides discovery and accounting which

35 Coggs v. Bernard, 2 Ld. Ray. 909.
39 Allnutt v. Ingles, 12 East ,527.

Willis: Anglo-American Law

113

had been invented in the Strict Period. There was practi-
cally no development in common law remedies, except that
general assumpsit became available for implied promises and
special assumpsit for bilateral agreements, and case was still
further extended to furnish remedies for two or three new
torts.

Courts. This period was marked, not by the creation of new
courts, but by the abolition of old. The Court of Star Cham-
ber was abolished in 1641, and the High Commission Court
and some of the courts established in the reign of Henry VIII
soon followed it into oblivion. These courts had become in-
struments of oppression and injustice, and their abolition was
one of the chief accomplishments of the Period of Equity.

Legal Procedure. Because of evasions of Magna Charta
and the writ of habeas corpus, a new Habeas Corpus Act
was passed in 1679, making it a crime to imprison a person
in Scotland or beyond the seas (where he could not be found
and a writ would not lie), providing for bail, for application
for writ in vacation to chancellor or any judge, and for pun-
ishment of gaolor for violation of the writ, and providing
that if a person was not brought to trial at the next sitting
he was to be given his liberty (with certain exceptions) and
not again imprisoned. Because of the especial harshness of
criminal procedure in cases of treason there was passed in
the reign of William and Mary (1695) an act which gave the
accused the right to a copy of the indictment five days before
trial, a copy of the panel of jurors two days before trial,
the right to take advice and make his defense by counsel, the
right to have his witnesses examined on oath, the right to
have the two witnesses (already required) testify to the same
overt act of treason, or to different acts of the same treason,
and the right in the trial of a peer or peeress to have sum-
mons sent to every peer. Some development in the law of
evidence occurred in this period. In this period were devel-
oped the parol evidence rule, the character rule, the best evi-
dence rule, the privilege against self-crimination, and the rule
as to two witnesses in treason. Cross-examination took the
place of torture, altho I suppose the witnesses thought that
cross-examination was only another form of torture. An act
was passed in 1697-1698 making reference to arbitration a
rule of court-

8—36'104

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The evolution of the jury became complete in this period.
Jurors entirely ceased to be witnesses and became judges of
the facts. New trials were granted in 1655. The rules as to
the measure of damages began to be formulated in the eight-
eenth century. The independence of the jury was established
in BushelVs Case (1670) when Justice Vaughan set at liberty
a juror who had helped to acquit the Quakers Penn and Mead.
The Star Chamber had admonished and fined and imprisoned
for returning verdicts contrary to the direction of the court.
The chief justice of the King’s Bench had continued this prac-
tice. But the above decision of Justice Vaughan ended the
practice.

By an act of 1731 all pleadings in common law actions were
required to be in English. Thus was terminated the practice
begun upon the establishment of the Curia Regis by William
I of having all pleadings in a curious language called, by
courtesy, French.

The reports which cover the common law cases of this
time are the Year Books, which cover the period from 1292
to 1537 ; the casual private reports, which cover the period
from 1537 to 1785; and the regular term reports which began
with 1785. The chancery reports began to improve. Text-
books of equity began to appear.

In general little improvement was made in common law
legal procedure, and the procedure in chancery became noted
for its delays. Reforms were demanded, but few were made.
The social interest in general morals had to be protected by
antecedent rights and remedial rights rather than by a legal
procedure adapted to that end. The extraordinary courts of
the Tudors were overthrown; the Ecclesiastical Courts were
reduced to dignified impotence; the House of Lords was pre-
vented by the Commons from trying cases as a court of origi-
nal jurisdiction; the Court of Chancery answered to the needs
of the subject; and with this the people were willing to en-
dure for a longer time the barbarities of common law pro-
cedure.

United States. While United States history began in the
Period of Equity, there has never been any such period in the
history of legal development in this country. Legal history
here begins with the Period of Maturity, which we shall con-
sider next. In New England in the seventeenth and the first

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115

of the eighteenth centuries law was a combination of Hebrew
law and popular law. After the Revolution the United States,
as states, adopted as our common law the common law of
England so far as adapted to conditions here, the canon law
so far as adopted by the Ecclesiastical Courts in probate and
divorce cases and English statutes, either as of the date of
1776 or as of the date of 1607 ; but it was too late to apply
this law during the time which had already passed, and when
they did come to apply English law they worshiped so blindly
at the shrine of Blackstone, whose Commentaries had been
published a short time before and in the law offices were
largely substituted for other law books which practitioners
did not possess, that they entered at once upon the Period
of Maturity rather than the Period of Equity. But since
equity and admiralty law had not reached their final form
in England, the United States, thru the work of Chancellor
Kent and Justice Story, contributed something in the nine-
teenth century to the Anglo-American law of these subjects.

CHAPTER XIII
PERIOD OF MATURITY

The Period of Maturity began about 1793, the year of the
death of Lord Mansfield, and lasted until about 1875, the date
of the passage of the Judicature Acts in England. This
makes the Period of Maturity a comparatively short period
of less than one hundred years.

Characteristics. The end of the law in this period was the
protection of property and freedom of contract. The social
interests protected were the social interests in security and
equality of opportunity. The emphasis now was upon rights,
instead of upon duties as the emphasis had been in the Pe-
riod of Equity. The social philosophy and economic theories
of the last quarter of the eighteenth century were adopted
by the courts. Men were thought to be endowed with certain
“natural rights”. Liberty was associated with equality of
opportunity, and it was thought that once political restric-
tions and restraints upon liberty were cleared away nothing
more would be needed. Government was regarded a neces-
sary evil, and the less of it the better. The theories of
competition, laissez faire, and individualism of Rousseau and
Adam Smith were in reality for this period at least made a
part of the common law. The period marked a revulsion
against the Period of Equity, as that period had marked a
revulsion against the Strict Period, and it is characterized
by many of the things which characterized the Strict Period.

Our Declaration of Independence and our bills of rights are
documents of the Period of Maturity and embody the philoso-
phy and economic theories of the period.

The social interests above named were protected on the
one hand by a reduction of the law to greater certainty and
strictness, as in the Strict Period; and on the other hand by
antecedent rights of contract, instead of by those created by
the law without contract. What was wanted in this period
was not more law, but less doubt about the law, and more
freedom for individuals to make their own law. What de-
velopment in the law occurred was consequently mostly in the
realm of antecedent rights rather than in the realm of rem-
edies or adjective law.

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Yet thruout this period other forces were at work, and tho
they did not accomplish much in this period, in the way of
reform, their reforms flowered in the next Period of Social-
ization of the law. Bentham had been commenting, first, on
the want of system and certainty in the law; and, second,
on the extraordinary harshness of the penal laws ; and in 1827
Parliament entered upon the work of law reform. Henry
Brougham, afterwards lord chancellor, a devout Benthamite,
delivered in 1827 in the House of Commons a long and bril-
liant speech on the laws of England.

He dwelt on the necessity of codification, especially of the criminal
law; on the absurdity of fines and recoveries ; on the complexity of the
methods of conveying land; on the cumbersome process of the common
law courts; on the extraordinary technicality of writs and pleadings;
on the fictions which had to be resorted to; and on the harshness of
the penal laws.

The result of his speech was the appointment of commis-
sions, which made valuable reports and laid the foundation
for further investigations, upon which legislative reforms
dating from 1833 to 1873 were based.

Equity. Lord Eldon, in the early part of this period, com-
pleted the work begun by Lord Nottingham, and reduced
equity to a system as fixed as the common law. After the
time of Lord Eldon the doctrines of equity remained intact
except for a few statutory modifications chiefly in the di-
rection of protecting trustees.

Public Callings. The law of public callings was distinctly
contrary to the purpose of the law in the Period of Maturity,
and while it was not entirely abolished it received important
limitations. No new callings were added to the list of public
callings, but some of the old callings were taken from the list,
and those callings left on the list of public callings were per-
mitted to fix their obligations by contract to a large extent
instead of having them fixed by law. In this way common
carriers were permitted to carry under a contract liability
as well as a common law liability, to exempt themselves from
all liability except for negligence, to limit the amount recov-
erable in case of loss (in most jurisdictions in case of loss
due to negligence), and to exempt themselves from all liabil-
ity to a free passenger.

Criminal Law. Various consolidation acts were passed in
this period. The nearest approach to a criminal code in Eng-

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land was the Criminal Law Consolidation Acts of 1861, but
even these left most of the old common law definitions un-
touched. Treason was cut down to offenses against the per-
sons of the sovereign. Criminal defamatory libel was modi-
fied by Lord Campbell’s Act of 1843, which made truth a
defense. Some of the states of the Union have abolished
common law crimes, and most of them have adopted penal
codes, which for the most part are mere codifications of the
common law. The federal government has no common law
crimes.

Real Property. The Fines and Recoveries Act of 1833 sub-
stituted simple disentailing assurances for collusive suits. The
Prescription Act of 1832 substituted brief periods for time
immemorial in case of profits and easements, and the Limi-
tation Act of 1833 vested title after twenty years from the
time claims became vested. By the Dower Act of 1833 the
wife became entitled to dower out of equitable as well as
legal estates, but only in lands to which the husband was
entitled at death and of which he died intestate. The Inheri-
tance Act of 1833 permitted the ancestor and relatives of
the half-blood to inherit. The Real Property Act of 1845
practically abolished feoffment by livery, almost obsolete for
two centuries, and substituted for it a deed of grant. The
Wills Act of 1857 required all wills to be in writing, those re-
lating to personalty as well as those relating to land, and
provided that all wills should speak as from the testator’s
death, so as to include all property of which he died possessed.

Corporations. In 1844 companies were allowed to obtain a
certificate of incorporation without applying to Parliament
for a charter, and an act of 1855 permitted registry with lim-
ited liability of members. In the United States, New York
passed the first general religious incorporation act in 1784.
This privilege was extended to manufacturers and bankers
in 1811, and made a general policy in 1850. In England,
railway companies still require an act of Parliament for their
creation.

Agency. The law of representation developed so as to make
the principal liable for the acts of the agent within the scope
of his authority, and the master liable for the acts of the
servant within the course of his employment.

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119

Sales. The law of sales is largely a development of this
period, and the great problem for the courts was to deter-
mine when facts constituted a sale and when only a contract
to sell, that is, when the title would pass. Was the ascertain-
ment of the price a condition precedent? At first the Eng-
lish courts held that title could be transferred only by deliv-
ery and payment. Then they adopted the reciprocal grant
doctrine, whereby they held that title might pass without de-
livery and payment if credit was given. Finally they held
that title would pass according to the intention of the parties,
whether or not credit was given (which shows the influence
of the theories of individualism and liberty of the time) . But
suppose something remained to be done to ascertain the price,
did that indicate an intention not to have the title pass? In
the case of Hanson v. Meyer,37 this was at first answered in
the affirmative as an absolute rule. Later, in the case of
Turley v. Bates ,38 this was qualified by confining the rule to
an unascertained price to be fixed by the seller, and the Eng-
lish Sales of Goods Act so fixed the law. In the United States
some courts followed Hanson v. Meyer and some Turley v.
Bates, and some did away with the presumption of retention
of title because something remained to be done to ascertain
the price.

Where something other than the ascertainment of the price
remained to be done to the goods by the seller to put them
in deliverable shape, all courts were agreed that the title
would not pass until such thing was done. But would the
title pass at once in the sale of a specified quantity from a
larger uniform mass? The English courts in the case of
Whitehouse v. Frost 39 at first answered, Yes; but this case
was overruled by later cases, in spite of the fact that the same
courts recognized tenancy in common in the case of confusion
of goods. A New York court held in the case of Kimberly
v. Patching that the title would pass if the parties so in-
tended, and this became the prevailing doctrine in the United
States. At first it was doubted that the parties would be
tenants in common, but later it was held that they were ten-
ants in common with the right of severance in the case of

37 6 East 614 (1808).

38 2 H. and C. 200 (1863).

39 12 East 614 (1810).

40 19 N.Y. 330 (1859).

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fungible goods. Where there was a sale of goods having a
so-called potential existence, would the title pass when the
goods came into existence, freed from any defects of title due
to rights which had accrued since the time of the original bar-
gain? In Grantham v. Hawley,41 the English courts answered,
Yes. This rule was later limited to crops and the young of
animals and still later was abolished in England by the Sales
of Goods Act. In the United States the doctrine was nar-
rowed so as not to apply to crops to be grown beyond the
next season, until the United States Sales Act, which followed
the English in this respect. Yet in the Period of Socializa-
tion it has been held that, where specific performance would
lie or a mortgage has been given and damages would be an
inadequate remedy for a breach of a promise to give security,
tho the doctrine of potential existence has been abolished and
the contract is turned into a contract to sell, such contract
may have equitable effect in the nature of a lien upon the
goods as they come into existence except against bona fide
third parties.

Suppose the sale was for cash, would title pass ? The early
law of the period held that title would not pass. Payment or
credit was required. But later there arose a presumption that
there was an absolute sale but that the seller had a lien in
lieu of title.

Contracts. In spite of the emphasis upon freedom of con-
tract, not many changes in the law of contracts were made
in this period. Among the few which were made may be
mentioned the rule which permitted a contract to be discharged
by an accord, at first (in 1831) in the case of composition, and
later in all cases if it was the intention of the parties to take
the accord in satisfaction; and the rule which permitted a
third party beneficiary to sue on a contract made either for
his sole benefit (donee) or where the promisee was under
existing liability to him (payment). In the case of third
party beneficiaries the courts got themselves into hopeless con-
flict. All agreed upon insurance cases. England, after first
deciding in favor of other donee beneficiaries, later decided
against them. In the United States some courts favored
donee beneficiaries; others payment beneficiaries; but most,
both classes of beneficiaries.

41 Hob . 132 (1616).;

Willis: Anglo-American Laiv 121

Torts. The law of torts was not in this period notable for
new torts created, but for the recognition of a theory of torts
in place of a theory of trespass, and for the development of
specific doctrines. The recognition of torts as a possible body
of principles governing liability for acts which injure others
was brought to pass by law writers upon the subject. The
first book on torts was a United States work, Hilliard on
Torts, which appeared in 1859. The first English book on
torts was Addison on Torts, which appeared the next year.
Another pioneer in this field was Bishop. Among the new
doctrines to be developed in this period were the doctrines
of proximate cause, assumption of risk, contributory negli-
gence, the ordinary prudent man, and of no liability without
fault. An ethical standard of reasonable conduct replaced
the unmoral standard of acting at one’s peril.

Remedies. There was no development in the law of rem-
edies, worthy of mention, in this period, except that with
reference to the remedy of damages, the functions of court
and jury were further defined. By the end of the eighteenth
century the matter of damages had become so much a judicial
question that the jury had little function to perform in con-
tract cases. In the present period the jury was shorn of
its power in all cases of pecuniary injuries, so that it was left
in power only in cases of non-pecuniary injuries and ex-
emplary damages, and even then under the direction of the
court. The period, however, was characterized by greater
strictness and technicality in the application of remedies.

Courts. There was some change in this period in the judi-
cial system of England, altho the great changes did not come
until the next and last period. Separate Welsh courts
were suppressed in 1830. A vice-chancellor, in addition
to the chancellor and the master of the rolls, was
appointed in 1813. Two more vice-chancellors were appointed
in 1841, when the equity side of the Exchequer was suppressed.
An intermediate court of appeal from chancery was created
in 1851. A Bankruptcy Court was established in 1837, 1869.
A Court of Probate, and a Court of Divorce and Matrimonial
Causes took over the jurisdiction of the Ecclesiastical Courts
in 1857. After these changes, appeals lay from the Queen’s
Bench, Common Pleas, and Exchequer to the Exchequer
Chamber (composed of all of the common law judges except

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those who heard the case in the first instance) and then to
the House of Lords; from Chancery (one court) to the Lords
Justice of Appeal, thence to the House of Lords; from Ad-
miralty and Ecclesiastical Courts to the Judicial Committee
of the Privy Council, which succeeded the Court of Delegates ;
and from the Court of Probate, and the Court of Divorce
and Matrimonial Causes to the House of Lords. The judicial
system which grew up in the states of the United States in
this period consisted of the courts of the justices of the peace,
courts of police magistrates, municipal courts, district (circuit,
or superior) courts, appellate courts, and supreme courts; to
which was added in the next period juvenile courts. The
federal system consisted of circuit courts (now district),
circuit courts of appeal, and the United States Supreme Court,
with a court of claims, courts for the District of Columbia,
Patent Office, Treasury Department (Comptroller), and terri-
torial courts.

Legal Procedure. One of the blackest spots in the pre-
Benthamite period was the way prisoners were treated on
trial. Before the revolution of 1688, a man accused of trea-
son or felony did not have the privilege of counsel (altho he
had this privilege in cases of misdemeanor, where conviction
did not entail loss of life and property), and the behavior of
judges and prosecuting counsel (especially in cases of treason
and sedition) was frequently most brutal. Brutality ceased
after 1688, counsel was allowed in treason cases after 1747,
and finally in 1836 the same privilege was extended to persons
accused of felony. In 1833, 1843, and 1851 Bentham’s views
in regard to the rules of evidence, that they were for the
discovery of truth rather than to hide it, so far prevailed as
to make everyone competent witnesses except persons ac-
cused of crime or their husbands or wives. Further reforms
of procedure in the common law courts were instituted in 1852,
1854, and 1860, but since these were absorbed and enlarged
by the Judicature Acts of 1873 and 1875, no further discus-
sion of them will be given, except to say that for one thing
all real actions were abolished. Wager of law was abolished
in 1833. Wager of battle was abolished in 1819. Benefit of
clergy was abolished in 1827. Summons and warrant were
authorized in 1848. A police was established: metropolitan
in 1829, borough in 1836, and county in 1839 and 1856. The

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123

court assumed further control over the jury in the matter of
the measure of damages in tort actions.

In the United States the work of reform of legal procedure
is found in what is called the Field Code of 1848, which has
been generally adopted by the states of the Union. Since that
time practically nothing in the way of reform has been
done in the United States. Criminal procedure is still that
of days of the Stuarts. The disqualifications of witnesses have
been largely abolished, but a preliminary examination of
jurors for bias is tolerated, and the position of state judges
in trials is not much more than that of bailiffs. Courts in
the United States have the power to declare statutes void.

The above reforms, while considerable, were not thoro-
going. In the United States, for example, it is questionable
if the legal procedure is any better under the codes than
it was under common law procedure. However, there were
rumblings which portended the storm of legal reform which
was to break in England in 1873, and which will probably
break in the United States within a few years from the time
this is written.

CHAPTER XIV
PERIOD OF SOCIALIZATION

The Period of Socialization began in England about 1875,
the date when the Judicature Acts went into operation, and it
has not yet ended. In the United States, while many of
the characteristics of the Period of Socialization have been
manifesting themselves for the last fifty years, it is doubtful
whether or not they have even yet become sufficiently para-
mount to give character to the period. Yet no effort will be
made to separate United States from English legal history
for purposes of classification of historical development.
Enough happened in England in 1875 so that it is accurate
to say that the Period of Socialization in Anglo-American
legal history began about that date.

Characteristics. This period marks a revulsion against the
Period of Maturity — with a concept of liberty whose only
outcome would have been anarchy, as the Period of Maturity
had marked a revulsion against the Period of Equity, and as
the Period of Equity had marked a revulsion against the Strict
Period. Thus we see how the legal pendulum has swung back
and forth thru the centuries. After it had swung over to one
extreme in the Strict Period, it swung to the opposite ex-
treme in the Period of Equity. Then it swung back towards
the Strict Period in the Period of Maturity. Following this
it swung again toward the Period of Equity in the Period
of Socialization. Consequently, the Strict Period and the
Period of Maturity have points of similarity, and the Period
of Equity and the Period of Socialization resemble each other.

The end of the law in the Period of Socialization is the
satisfaction of as many human wants as possible. It is tend-
ing in the direction of making legal justice social justice. It
is endeavoring to give fair play between groups as well as
between individuals. The chief characteristic of the law in
this period is the emphasis upon social interests. The natural
result of the overemphasis of rights in the Period of Maturity
was to raise the question of why people had rights. The ex-
planation that they were natural and God-given was exploded
by the discovery that the only natural rights which men had
were the actual rights which Englishmen had obtained for

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125

themselves. Then it was discovered that the reason why men
had rights was in order to protect certain social interests.
Men saw that the historical order was not the natural order.
The historical order has been, first, courts and legal pro-
cedure; second, remedies; third, duties; fourth, rights; and
fifth, social interests. The natural order is, first, social in-
terests; second, rights; third, duties; fourth, remedies; and
fifth, courts and legal procedure (legal redress). Individuals
have rights and duties because only thus, under the legal
scheme, can social interests be protected. Remedies are given
for the purpose of making rights and duties effective. Legal
redress thru the machinery of the courts and legal procedure
is the means whereby remedies are carried out. When this
was discovered people also discovered that unless rights,
duties, remedies, and legal redress are furthering some social
interest there is no good reason for their existence; that if
one social interest is more important than another, the one
of less importance in case of conflict must yield to the one
of more importance; and that there are other social interests
just as important as those which had been emphasized up to
the last of the nineteenth century. The result was that there
has been great development of social interests in this fifth and
last period in the historical development of Anglo-American
law. Not only the social interest in general security, including
the interests of personality, domestic relations, and substance,
but the social interests in the security of social institutions,
in general morals, in the conservation of social resources, in
general progress, and in the individual life have been recog-
nized and protected by the same scheme of social control by
which the earlier social interest in general security was pro-
tected.

This development in the law has given us a new juris-
prudence called sociological jurisprudence. Some of the chief
exponents of this are von Jhering in Germany, Leon Duguit
in France, and Roscoe Pound in the United States. These
men have correctly interpreted the Period of Socialization, if
they have not positively given direction to some of its move-
ments. Thus there is observed in the twentieth century the
same relation between law and philosophy and economics
which existed in the nineteenth century, but it would be diffi-
cult to tell which has changed more, the law, or philosophies
and economic theories.

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International Law. An interesting manifestation of the so-
cialization of the law is the development of law in the inter-
national field. There are international social interests even
more paramount than national social interests. The social
interest in peace on the high seas and between the people
of the nations is certainly greater than the social interest in
peace on land and between people as individuals. There are
other paramount international social interests, like inter-
nation commerce, freedom of the seas, disarmament, and the
prevention of the rebarbarization of the world. Judging from
past legal history it would seem that the way to protect such
social interests would be to substitute law for force by the
formation of an international government — a federation of
nations — with jurisdiction over such international social in-
terests ; which would first recognize the international social
interests to be protected, and then protect them by the recogni-
tion of international rights and duties (like disarmament and
outlawry of war) and by some scheme of international legal
redress, as by a world court. But it looks as tho in interna-
tional affairs, as in national affairs, people would not follow
the logical order but the practical order, and instead of learn-
ing anything from the past would follow the slow method of
the past. If that is done, the first step will be an attempt to
regulate international vengeance and self-help (war) and
afterwards to abolish it, but even when the world is ready
to abolish war and substitute law therefor it probably will be-
gin, not with international social interests, but with courts
and legal procedure, then remedies, then rights and duties,
and finally social interests. The regulation of war by treaties,
the League of Nations, and the World Court indicate that
the old legal historical order is going to be followed in inter-
national affairs, but they also indicate that some day there
is a possibility for the law to reign in international affairs as
supremely as it now reigns in national.

The social interests of the Period of Socialization are pro-
tected for the most part by a new and reformed system of
courts and legal procedure, but they also receive some protec-
tion by the creation of new legal capacities and liabilities
and an extension of the old remedies to meet the new situa-
tions. For example, rights and privileges of property which
were upheld in the nineteenth century will not be tolerated

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today; as shown by the fact that a spite fence is no longer
legal ; by the fact that many limitations are put upon property
in the exercise of the police power, the power of taxation, and
the power of eminent domain; by the fact that the husband
must have his wife join in a conveyance of realty; by the fact
of the limitations placed upon creditors and other injured
parties by exemption laws and bankruptcy laws; and by the
fact that things formerly classed as res communis and res
nullius are now classed as res publicae. Freedom of contract
is no longer limiting, but is being limited by the law of in-
surance, and the law of public callings, and by the rules of
illegality. Liability is being imposed without fault upon the
master, or employer, in workmen’s compensation laws, upon
the owner in case of dangerous instrumentalities, and upon
the head of the family in case of the family automobile. There
is a social interest in holding no one liable without fault,
but in modern times there are other social interests which
sometimes overbalance that social interest, and then absolute
liability is better than no liability without fault. Taxation
laws, especially income and inheritance tax laws, are now
based upon the principle of ability to pay.

Real Property. Remarkable changes in real property law
have occurred in England. Permissive waste was abolished
in England in 1889 thru the action of the equity courts.42
m 1891 equity also abolished ameliorating waste.43 Ameliorat-
ing waste has never been recognized in the United States.
The Settled Land Act of 1882 enabled a life tenant and a
tenant in tail to convey a fee simple, so that others interested
would have only a trust in the proceeds. The Registry Acts
of 1862 and 1875 provided the machinery for registration,
but it did not work well. But the great changes came with
the Consolidating Acts of 1925 which went into operation in
January, 1926. This was a code of real property law. The
great purpose of this reform, a lawyers’ reform, was to carry
out the Benthamite belief in the free trade in land and break
up the family settlements of England. The 1925 Acts went
farther than the Acts of 1882 and gave the life tenant a
fee simple, reserving to others interested only a trust in pro-
ceeds, and provided for trusts for sale. The Acts of 1925 re-

42 In re Car tier ight, 41 Ch. D. 532.

43 Menx v. Cobley, (1892) 2 Ch. 262.

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pealed the Statute of Uses, the Statute of Distribution, and
the Statute for Partition. But because of the lack of registry
of legal and equitable titles the Acts made the legal estate
of paramount importance for the sake of the purchaser. The
Acts of 1925 simplified tenures ; reduced estates to fee simples
and estates for years, and abolished tenancies in common;
kept most equities off the title; denied a fee to mortgagees;
provided that settlements must be by way of trusts; and as-
similated the devolution of real and personal property.

Many, including T. Cyprian Williams and Sir Arthur
Underhill, desired to push the reforms further, and probably
within a few years they will be pushed further. The legal
profession in England agrees that the classic law of estates
has outlived its usefulness, and the leaders believe that the
law of property for the future must come out of the law of
personal property. Real property must be assimilated to
personal property. But how? One suggestion is to assimilate
land to the chattel real. A compulsory registration of title
(or perhaps of deeds) will also probably come in England
within a short time after the ten years of inaction guar-
anteed.44

Many of the problems which have been bothering the
English do not bother the people of the United States. Land
in the United States has always either been owned allodially
or held under free and common socage tenure, so that we are
not bothered by family land settlements. We do not find so
much difficulty in assimilating real to personal property be-
cause we have assimilated personal property to real property.
We have long had complete systems of registration. In the
United States the law of waters has practically become the
golden rule. Yet our real property law is not perfect. For
the future we have the same problems which the English have,
and shall probably solve them as the English will by obtaining
a law of property out of the law of personal property.

Contracts. The development in the law of contracts in this
period has been in connection with the topic of illegality, thru
which means many things have been removed from the realm
of contracts in order to protect other social interests. Illustra-
tions of these things are agreements in restraint of trade,
agreements to create a monopoly, agreements to relieve a com-

44 Bordwell, “Property Reform in England”, 11 Iowa L. Rev. 1.

WilUs: Anglo-American Law 129

mon carrier from liability for negligence, agreements to in-
jure the public health, agreements to promote dereliction of
public duty, lottery and wager agreements, etc. Most of
these inhibitions are statutory, yet for the most part the law
of contracts still remains case law. The American Law In-
stitute is working upon a restatement of the law of contracts.

Bills and Notes. A Bills of Exchange Act was passed
in England in 1882, and in the United States a Uniform
Negotiable Instruments Act drafted by the Commissioners on
Uniform State Laws has been enacted by practically all the
states of the Union.

Sales. A Sales of Goods Act was enacted in England in
1898, and a similar Uniform Sales Act recommended by the
Commissioners on Uniform State Laws has been widely
adopted in the United States.

Public Callings. The law of public callings has again begun
to grow. Not only have new callings, like insurance and
housing in times of emergency, been put into the class of
public callings, but freedom of contract in the realm of public
callings has been largely abrogated for control and regulation
by public commissions. A uniform bill of lading prescribed
by the Interstate Commerce Commission has practically sup-
planted private contracts by railroads. Uniform bills of lad-
ing and uniform warehouse receipts acts have been adopted
by Congress and by many state legislatures.

Persons. Married women, infants, and insane persons have
either been emancipated or received greater protection than
heretofore.

Torts. The new torts of procuring refusal to contract, pro-
curing breach of contract, and privacy have appeared in this
period. Workmen’s Compensation laws and old age pension
laws for laborers and the aged also have made their appear-
ance. Absolute liability has also been imposed in case of
dangerous instrumentalities and the family automobile. The
American Law Institute is at work upon a restatement of the
law of torts.

Constitutional Law. In the United States constitutional
law has had and is having a tremendous growth. This is
due to the fact of our written constitutions, our dual form of
government, and to the fourteenth amendment to the United
States Constitution. Under the fourteenth amendment espe-

9—36004

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daily the United States Supreme Court is determining and
protecting social interests as perhaps no other tribunal in the
world.

Courts. The socialization of the law has manifested itself
in this period in England in the reform of the system of
organization of the courts and in the reform of legal procedure
as in no other way. By the Judicature Acts of 1873, 1875,
1876, and 1881, there was accomplished a reform of the judi-
cial system of England and of the legal procedure in the com-
mon law courts, which had been needed as far back as the
first part of the Period of Equity. Refusal to make this
reform had been largely responsible for the rise of the Court
of Chancery; this kind of reform had been attempted at the
time of the Restoration and at subsequent times without suc-
cess.

By the Judicature Acts all the superior courts were com-
bined into one system called the Supreme Court of Judicature.
This was divided into three branches: the High Court of
Justice, the Court of Appeal, and the House of Lords and the
Judicial Committee of the Privy Council (four paid members
of Lords and four paid members of Judicial Committee) . The
High Court of Justice was in turn divided into three divi-
sions: The King’s Bench Division, the Chancery Division,
and the Admiralty, Probate, and Divorce Division. Besides
this great court there were established the County Courts,
created in 1846 to take the place of the local courts which
had died; the Assize Courts and the Central Criminal Court
(London) ; and the Quarter Sessions of the Justices of the
Peace. The County Courts were given jurisdiction over
amounts not to exceed £50, allowed a jury of five, and given
fifty-four circuits with fifty-four judges, and an appeal to the
High Court was a matter of right where the amount was over
£20. The judges of the King’s Bench Division were required
to do the work in the Central Criminal Court. The Quarter
Sessions were divided into Petty Sessions and Police Court.
The Court of Appeal was made to consist of the lord chan-
cellor, the chief justice of England (King’s Bench), the
master of the rolls, and five lords justices of appeal, as
ordinary members, and it was provided that any ex-lord
chancellor might, if he was willing, sit as a member.

Legal Procedure. By the Judicature Acts there was created
a new legal procedure compounded out of the best in com-

Willis : Anglo-American Law 131

mon law and equity, but leaving all details to rules of court.
Since the Judicature Acts, while there has been an assignment
of subjects to the different divisions of the High Court of
Justice, all matters are cognizable by any division of the
court. This has resulted in the abolition of multiplicity of
suits. In the matter of preparation of cases for trial, a plain-
tiff can in the same action claim both legal and equitable
remedies, and can ask for the redress of all his grievances
against the defendant ; the defendant may counterclaim in the
same suit any substantive cause of action which he has against
the plaintiff; no injunction can be issued from one division to
restrain proceedings in another ; forms of action are
abolished; technicalities of pleading have been abolished and
in most commercial causes they are altogether dispensed with ;
and chancery proceedings have been shortened by the originat-
ing summons. In this way, not only are all differences be-
tween the parties settled, but they are frequently settled in
a summary way without going to court ; and even if they are
taken to court the state/instead of private attorneys, exer-
cises supervision over the way the case shall be presented.
In the matter of the trial of cases, modern English legal pro-
cedure is characterized by nonpartisan control over all the
proceedings by the judge. The state impanels the jury. The
judge determines the issues, examines witnesses, sums up the
case before the jury, and requires special verdicts. The ac-
cused, or husband or wife of accused, may testify. Parties
may be witnesses. Oral evidence is preferred to affidavits.
The defense is entitled to counsel. As a result there little
bickering over the rules of evidence. In the matter of review,
appeals are conducted as rehearings, and the appellate court
practically always renders final judgment. This has done
away with new trials and reversals for technicalities. There
was no appeal in criminal cases until 1907, when the Court
of Criminal Appeal was established, but it grants no new
trials. Perhaps the most admirable of all the reforms in-
troduced into English legal procedure is the making the rules
for the most part rules of court. The consequence of this is
that the rules are directory, not mandatory, and if any one
of them is violated it is not reversible error. This more than
anything else has helped to stop the practice, which still pre-
vails in the United States, of litigating legal procedure.

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United States. While little has been done in the United
States to reform our system of organization of courts and to
reform our legal procedure (“the etiquette of justice”), there
has been much discussion of the subject, and many of the
leading judges, practitioners, and law teachers have been
endeavoring to get the people of the United States to do
something. Among those who have taken this position of
leadership may be mentioned Chief Justice Taft, Hon. Elihu
Root, Dean Roscoe Pound, Dean John H. Wigmore, and Pro-
fessor Edson R. Sunderland. The American Judicature So-
ciety is an organization with headquarters in Chicago which
for years has "been devoting itself to this enterprise. The
American Bar Association and many state bar associations
have advocated many specific reforms. Commissions to in-
vestigate the subject and report have been appointed in many
states. The American Law institute, composed of nearly a
thousand of the leading law teachers, practitioners, and judges
of the United States and heavily endowed, is now engaged
upon a restatement of all the substantive common law, and
may, before it is thru with its work, if a reform does not
come in some other way, undertake to reform our legal pro-
cedure.

Because of our dual form of government it is going to be
difficult to reform our judicial system so as to make it func-
tion with the efficiency of the modern English judicial system.
To reform the federal system and each of the various state
systems separately will not accomplish what is desired in the
way of abolition of multiplicity of suits. That can be accom-
plished only by an amalgamation of all the state and federal
courts into one system. This could easily be done, if political
consent for such a change could be obtained, by so far as
necessary turning the state trial courts into federal district
courts and abolishing all other state courts, but no one ex-
pects such a reform eTT^ to be brought to pass. Hence this
part of the reform may never be accomplished.

The same problem is met with in connection with the reform
of legal procedure. Here, also, the way of reform seems to
lie in the direction of the modern English reform. But it is
going to be difficult to get such a reform into both the federal
courts and all of the state courts. Yet this is what ought
to be done, and this may not be so difficult of accomplish-

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ment as the reorganization of our courts. Perhaps if the
federal courts would adopt the modern English legal pro-
cedure, pursuant to power conferred upon them by Congress,
the various states might one by one follow the example of
the federal government.

The Future. What is going to be the future development
of Anglo-American Law? Will there be further growth in
the present Period of Socialization? Will this period be fol-
lowed by another period, and if so what will be the nature of
it? Is the legal pendulum going to continue to swing back
and forth from the side of reaction to progress? These and
many other questions will have to remain unanswered.

The answer to what the student and others interested in
the improvement of the law should do is not so difficult. In
the future such men must study the behavior of men as well
as the law chronicles of the centuries. Legal scholarship
must show less devotion to logic and more devotion to social
reality. It must attempt to get under and behind the ap-
plicable legal rule and illuminate it by a study of the particular
social and economic phenomena it purports to control. It
must enlist the cooperation of economist, sociologist, political
scientist, and philosopher. The forward-looking scholar who
has searched for the historical bases of our law will not take
up arms against certainty and predictability as certainty and
predictability, but he will insist that certain and predictable
rules shall work well here and now in the social world in which
we live and that justice shall not be sacrificed on the altar of
logic.

PART THREE

SHORT BIOGRAPHIES OF SOME GREAT ANGLO-
AMERICAN LAWYERS

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CHAPTER XV

GREAT LAWYERS OF ENGLAND

Some knowledge of the great practitioners, judges, and law
writers and teachers of England and the United States should
be possessed by every member of the legal profession. Such
knowledge may not help them to win cases, but it will help
them to be better members of society and of that profession
which boasts a gallery of portraits unequaled by any other
profession. The lawyer should be more than a money-grubber ;
more than a hireling letting out his services to the highest
bidder. He is a member of a profession which has under-
taken to perform one of the greatest social services known
to man, that of administering justice on earth. Such a task
requires for its execution more than a knowledge of pre-
cedents. It requires a knowledge of all the subjects of human
study. While this requires especially a knowledge of the social
sciences, yet the ideal lawyer is a broadly educated man; he
is a man of culture; he is a member of a learned profession,
and is himself a learned man ; and no lawyer can call himself
learned unless he has an acquaintance with the names and
the work of the great men who have preceded him in his pro-
fession.

Not all of the great lawyers of England and the United
States can be referred to, even in a brief way. There have
been too many. The lawyers for example have almost filled
the benches of the Lords and the halls of Congress. But per-
haps enough of the greatest can be referred to to give the
modern law students and lawyers an appreciation of those
who have lived in the past, and to enrich their minds with
information that will be entertaining, cultural, and inspira-
tional.45 Other things being equal, preference has been given
to the lawyers of the past who have stood the test of time.

Archaic Period. The lawyers of the Archaic Period who
made a lasting reputation for themselves are not numerous,
and the facts preserved in regard to those who did are meager,
but the few things of interest in regard to them will be related.

45 Zane, “Five Ages of Bench and Bar of England”, 1 Select Anglo^Am. Essays,
625 ; Foss, Dictionary of the Judges of England; Campbell, Lives of the Chief Justices;
Campbell, Lives of the Lord Chancellors; Pollock and Maitland, Stubbs, Hallam, and
other historians.

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Normans. The common law owes its origin to the Normans,
not the Anglo-Saxons, as it is frequently said. The Normans
seemed to have a genius for organization, and the Norman
barons attended to their judicial duties with zeal. A new
system of courts, legal procedure including the jury system,
a true criminal law of the state, and a law of real property
were imposed by the Normans upon an unwilling people.
William the Conqueror began this great work. The Curia
Regis goes back to him, and he permitted the Ecclesiastical
Courts to be created. His chief legal adviser was probably
an eccelesiastic and professor of law, Lan Franc, archbishop
of Canterbury (1005-1089), who was the author of the
Domesday Book . The chief legal adviser of William II was
another priest, Flambard, bishop of Durham (-1128), who,
tho a churchman and learned in the civil and canon law, did
everything possible to aid the king to build up a secular law
and secular tribunals. He was the author of various schemes
for filling the royal treasury. Among these may be named
reliefs, wardships, and the bringing of church lands under the
feudal system, so as to make church temporalities devolve upon
the king during vacancies. He was able, artful, but un-
scrupulous, and was hated by the churchmen. Roger of Salis-
bury (-1139), another ecclesiastic, was responsible for the
creation of the Court of Exchequer. Alberic de Vere (-1140),
a great chamberlain of Henry I, was both a great lawyer and
noted because he became head of a house conspicuous for its
great lawyers.

First Plantagenets. The work begun by the Norman kings
was completed by the first Plantagenets. Henry IPs reign
was remarkable for its legal development. Henry II often sat
in court. Luci (-1179), one of Henry IPs chief justiciars,
was joint author of the Constitutions of Clarendon, whereby
the king tried to obtain for the king’s courts the jurisdiction
of the church courts. But the two greatest lawyers in the
time of Henry II were Ranulf Glanville and Thomas a Becket.

Glanville (1130-1190). Glanville is noted for his treatise on
the Laws and Customs of England . This was the first English
law treatise and the greatest until the publication of Bracton’s
treatise. It was mostly a book on procedure. Glanville was a
layman. He had held an office in the Exchequer and had been
sheriff before he was appointed justice itinerant. After this

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experience he was made chief justiciar by Henry II, and sat
at Westminster. He was executor of the will of Henry II,
assisted at the coronation of Richard I, and went with the
latter to Jerusalem and died at Acre.

Becket (1118-1170). Thomas a Becket, archbishop of
Canterbury, was chancellor under Henry II, and one of the
two English chancellors numbered as saints. He has been
called the first English chancellor, but probably the office had
existed for some time prior. Scutage was substituted for
military service on his advice. He devised statutes on legal
procedure, and with the king and his chief justiciars removed
private oppression, suppressed robbery, restored property
wrongly held, and generally helped to vindicate the supremacy
of law over force. But he was a churchman, educated in the
canon and civil law at Paris, and he opposed the king in his
project to take jurisdiction away from the Ecclesiastical
Courts. In his fight with the king he at one time fled to Louis
of France. He was recalled, but he was finally killed. Be-
cause of this the people turned against the king, and he failed
in his campaign against the Ecclesiastical Courts. Other-
wise the King’s Courts might have taken over the jurisdiction
of the Ecclesiastical Courts at this time.

During the reign of John the outstanding lawyer was
Geoffrey Fitz Peter (-1213). He is responsible for the rule
that realty devolves upon the heir and personalty upon the
personal representative, which resulted from a decision
rendered against his own personal interest, that a will of lands
was invalid. But he is chiefly known for the restraint which
he exercised over John. This was such that the king both
feared and hated him, and on his death the king said, “I am
now king and lord of England.”

Henry III promised to appoint as judges only men who knew
the law, and as a consequence his reign is conspicuous for
trained lawyers. The greatest of these was Bracton, but two
others whom Bracton canonized in his treatise and cited almost
as his sole authority were Pateshull (-1229) and Raleigh
(1250). All three were priests. Raleigh is reputed to have
devised many new writs.

Bracton (-1267). Bracton’ s father was a vicar of the church
at Bratton of which Raleigh was rector. After Bracton
had studied at Oxford, Raleigh made him his clerk. There-

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after he became justice in eyre and traveled the circuits for
twenty years (1245-1265). He was made sergeant-at-law
in 1245, and part of the time sat at Westminster, but because
of his leaning towards the party of the barons (Simon de
Montfort) he was dismissed by the king from the king’s court.
Bracton was a great lawyer, but he is chiefly famous as a
law writer. His book was the greatest treatise on the law
of England until Blackstone’s Commentaries, which were
written five hundred years later. Formerly it was thought
that Bracton’s book was only an attempt to introduce Roman
law as the law of England, but with Vinogradoph’s discovery
of Bracton’s note book in the British Museum in 1884 it was
discovered that Bracton had made a careful statement of the
actual law of England. He examined five hundred precedents
and discussed writs and gave us the common law as it had
then developed. His general conceptions, arrangement, and
classification he took from the civil law with which he was
familiar, and where there was no common law he sometimes
supplied civil law, but the substance of his book is the law
which had been administered by the courts. His treatise
shows that England in his time had a rationalized legal pro-
cedure, a true criminal law of the state with direct punish-
ment instead of compositions, a developed law of real property,
and fixed rules of law. Professor Woodbine of Yale Uni-
versity is now working upon a translation of Bracton.

Strict Period. The Strict Period was the period of the com-
mon law lawyer. There were many practitioners and judges
of eminence in their day, but few who left any permanent
reputation or impression upon the law. They were logicians.
They could win cases. Their contemporaries probably thought
of them as little gods, but the verdict of history is that it
takes other stuff to make great lawyers. This period, there-
fore, does not compare with the next Period of Equity in
illustrious names. There are many names which should be
mentioned, but few that should receive much emphasis. The
lives of this period become somewhat monotonous, but the
student should at least read enough about them to become
familiar with some of the names.

Last Plantagenets. The lawyers who should be mentioned
in the time of the last of the Plantagenets are Francis of
Accursii, Robert Burnel, Hengham, Bereford, Hilary, Staun-

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ton, Herle, Stonore, Parning, Cavendish, Tresilian, Waltham,
and Wykeham. Edward I had a great reputation as a law-
giver, and has been called the English Justinian. The reason
for his reputation is the fact that he had the good judgment
to keep at hand and to follow the best legal advice. He had
constantly at his side the great Italian lawyer, Francis of
Accursii. His closest friend was his chancellor, Robert Burnel
(-1292), who drew the Statute of Wales, which projected the
English law over Wales. Hengham (-1309) was called the
father of common law judges and was an authority on writs.
He wrote two works on procedure called Hengham Magna and
Hengham Larva. He was also the author of the Statute
de Donis. He was chief justice of the King’s Bench under
Edward I until impeached on trivial charges and removed by
Parliament in 1289. He was restored to the bench and made
chief justice of the Common Pleas ten years later, and was
reappointed by Edward II. Bereford (-1326) succeeded
Hengham as Chief Justice of the Common Pleas. He served
as judge thirty-four years, and was one of the greatest char-
acters on the bench in the time of Edward I. He was sharp
with attorneys and other judges, swore on the bench, and
despised the Anglo-Saxon wager of law. The barons changed
the monarchy to a narrow oligarchy in the reign of the
frivolous and foolish Edward II. Edward Ill’s reign was
vigorous and brilliant, and largely occupied with French wars.
Robert Parning (-1348) was chancellor under Edward III and
was the first regular common law lawyer appointed to that
office. Cavendish (-1381), tho a judge of rectitude and in-
tegrity, had his house plundered and burned and himself be-
headed in Wat Tyler’s rebellion of 1381, because tho the re-
bellion was against villein services and rentals there was great
feeling against the lawyers. Tresilian (-1388) was made
chief justice of the King’s Bench after the murder of Caven-
dish and tried and punished the insurgents. He was the most
cruel judge in England until Jeffreys. He countenanced what-
ever was agreeable to the king, Richard II. He was finally
accused of high treason, captured in disguise, and beheaded.
Wykeham (1324-1404) held the office of chancellor for short
times under both Edward III and Richard II. He is chiefly
known for his correction of the abuses of religious houses
and the building of colleges and cathedrals. The common law

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judges in this time were chosen from the sergeants of large
practice.

Lancaster and York. The chief lawyers during the reigns
of the houses of Lancaster and York were Thirning, Rickhill,
Gascoigne, Hankford, Markham, Danby, Norton, Prisot, Hody,
Croyle, Choke, Brian, Skrene, Yelverton, Fortescue, and
Thomas Littleton. Thirning (-1413) was appointed as one to
receive the resignation of Richard II, because Henry IV did
not want to olfend the lawyers. He was appointed chief
justice of the Common Pleas by Richard II, and Henry IV, and
Henry V. Gascoigne (-1419) was chief justice of King’s
Bench under Henry IV. When the king commanded him to
pronounce sentence of death on Archbishop Strope and Earl
Mowbray for leading an insurrection, Gascoigne answered,
“Neither the king nor any of his subjects can according to
the law of the realm sentence a prelate to death, and the Earl
has a right to be tried by his peers.” Gascoigne also once
put in jail for contempt the king’s son, Prince Henry, who
drew his sword in court because the chief justice would not
release him; but when Prince Henry became Henry V he did
not reappoint Gascoigne because of the indignity laid upon
him. Hankford (-1422) was justice under four kings —
Richard II, Henry IV, Henry V, and Henry VI. He had a
high reputation for moral and legal character. John Mark-
ham (-1479) kept from the civil contest of the times, and was
justice of King’s Bench under Henry VI and chief justice
under Edward IV. Danby (-1471) was justice of the Com-
mon Pleas under Henry VI and chief justice under Edward IV,
and continued on the restoration of Henry VI for six months,
but was not reappointed by Edward IV. He committed
suicide because of the perplexities of the times by ordering
his keeper to shoot anyone walking in his park who did not
answer the keeper’s challenge. Prisot and Hody (1441)
helped Littleton on his Treatise on Tenures . The two great-
est lawyers of this period were probably Fortescue and Thom-
as Littleton.

Fortescue (-1476). John Fortescue was a great practi-
tioner, judge, statesman, soldier, writer, and scholar. He was
a Lancastrian, and chief justice of the King’s Bench under
Henry VI, but was attainted of high treason, as one engaged
in the battle of Towton, by the first Parliament of Edward

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IV, and his possessions were forfeited to the king. He worked
hard for the restoration of Henry VI, but after the death of
Henry VI and his son, Fortescue retracted all he had said
against Edwards’ title, his attainder was reversed, and he
was appointed a privy counsellor.

Littleton (-1481). Thomas Littleton’s name is still sacred
in Westminster Hall. After going thru the usual preliminary
steps of study in one of the Inns of Court (Inner Temple), of
practice (in Chancery), and becoming a king’s sergeant, he
was appointed by Edward IV a justice of the Common Pleas,
where he presided from 1466 to 1481. He was a judge of
great learning and impartiality, and, tho a Yorkist, Was un-
influenced by the passions of the contending political parties.
He was granted two pardons, not for any offenses but for
abundance of caution, to cover any possible irregularities
when he was at one time sheriff. His celebrated Treatise on
Tenures is one of the greatest works of the common law. Coke
called it “the most perfect work ever written”.

Tudors. The great lawyers in the time of the Tudors were
Sir Thomas More, Cardinal Thomas Wolsey, Edward Mon-
tagu, and James Dyer. Edward Montagu was made chief
justice of the King’s Bench by Henry VIII in 1539, but re-
moved and became chief justice of the Common Pleas in 1545
because the new position was more profitable tho less exalted.
He did the dirty legal work of Henry VIII. At first he re-
fused to agree to the settlement of the crown on Lady Jane
Grey by Edward Vi’s will, but at last on the command of the
king under the great seal (with a general pardon for obeying)
he consented. For this Mary committed him to the Tower,
but upon his drawing up a complete narrative he was dis-
charged upon the payment of a fine. James Dyer was judge
of the Common Pleas and chief justice under Elizabeth, after
two Catholics had been degraded. He also read to his society
on the Statute of Wills. A glory surrounded his name be-
cause of his efficiency, firmness, and patience. He “did keepe
the prowde in awe”. But all other lawyers in this period
were eclipsed by the great chancellors Cardinal Wolsey and
Sir Thomas More.

Wolsey (1471-1530). Cardinal Thomas Wolsey was prob-
ably the most extraordinary man who ever ruled the destinies
of a kingdom. His father was a butcher. He graduated

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from Oxford at the age of fifteen, a “boy bachelor”. He was
maintained at Oxford by friends instead of his father, but
his father gave him a legacy upon condition that he become
a priest within a year. He did not become a priest for four
years after his father’s death (1500) . He was handsome and
free and easy in manners, and after he had obtained his first
parish got drunk and was put in the stocks, so that he had to
retire from the parish, but when he became chancellor he
punished the knight who had put him in stocks by forbidding
him to leave London. Next he became chaplain to the lord
keeper of the Great Seal, and then to the king, Henry VII.
Henry VII sent him on a mission to Maximilian at the time
of the marriage of his daughter, and he was back successful
within four days, insomuch that the king asked “why he had
delayed going”. Then he was given the deanery of Lincoln.
Henry VIII appointed him one of his council and then almoner.
He meanwhile became bishop of Lincoln, archbishop of York,
and finally cardinal in 1515, by appointment of Pope Leo
X. All this time, tho only royal almoner, he relieved the
monarch of his political labors and really was the chief ad-
viser and mover in all state affairs. In 1515 the king ap-
pointed him lord chancellor, after Wolsey had forced
Markham’s resignation from the chancellorship so that he
could get it. His attendance in chancery was regular and
punctual, and his decrees equitable and just. He also sat in
the Star Chamber, Legatine Court, and minor courts. His
downfall was due to Anne Boleyn, who thought he had played
her false, tho her marriage did not occur until two and a
half years after his death. He was accused of violating, under
legatine powers from the Pope, an old statute of Richard II,
and he allowed judgment to go against him. Parliament
failed to impeach him and the king pardoned him, but at the
price of most of his possessions. But he was arrested for
high treason by the Earl of Northumberland as he was pre-
paring to be installed as archbishop, and on the way to Lon-
don he fell mortally ill and died in 1530. Wolsey was vain,
ambitious, and avaricious. His income was enormous, and
was derived from church offices, bribes, and pensions. His
love of ostentation was shown in his daily processions to West-
minster. The popedom was his aspiration. He was vin-
dictive, but not cruel, and he had a violent temper. Yet a

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detail of the political occurrences of his life would give a his-
tory of the civilized world of his time. Shakespeare has im-
mortalized him in his play, Henry VIII.

More (1478-1535). Eight days after the Great Seal had
been taken from Cardinal Wolsey it was given to Sir Thomas
More, who became chancellor in 1529. Probably no man on
earth was ever better fitted to hold that office. He was a son
of John More, a judge of the King’s Bench and Common Pleas
under Henry VIII, who probably procured his place on the
bench because of his illustrious son. He went thru the cus-
tomary apprenticeship and schooling. He studied at Oxford
and was a friend of Erasmus, and while at Oxford devoted
himself for two years to literature. He also was admitted to
Lincoln’s Inn while still at Oxford, and later was appointed
governor of this inn by Henry VIII, where he was a reader
in 1511 and 1516. At one time he was inclined to the priest-
hood, but he went into practice and attained such a reputation
that he was employed as counsel by one of the parties in al-
most all actions. He defeated a grant of money by Parlia-
ment for the marriage of Henry VII’s daughter, for which
his father was sent to the tower until he paid a fine. He
was sent on two embassies by Henry VIII and offered a pen-
sion, but he declined the pension because it was no more than
he was getting and he wanted to be free from the king. He
entered the Privy Council in 1520, and was speaker of Parlia-
ment in 1523. He was intimate wth the king and Cardinal
Wolsey. He published his History of Richard III and his
Utopia in 1516. Finally he succeeded Wolsey as chancellor.
His modesty was in contrast with Wolsey’s arrogance. His
diligence was so great that he caught up with his calendar.
He refused bribes and gifts. When the common law judges
complained that their judgments were suspended by injunc-
tions, he called them together and made them admit the in-
junctions were just, and advised them to reform the common
law. But he held this high office for only two and a half
years, and resigned because of a question of the king’s mar-
riage. He refused to take an oath that the king’s first mar-
riage was invalid, and for this he was attainted and his
property taken. The king then tried to trap him by get-
ting him to deny that the king was the head of the church.
Rich, in a familiar secret talk, got from him the statement

10—36004

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that a subject could not so consent, and an obsequious jury
found him guilty of treason and he was beheaded.

Period of Equity. The Period of Equity was rich in the
names of great lawyers. This period was as brilliant as the
Strict Period for the most part had been dull. Among those
who should be named for their great attainments are Coke
and Bacon, whose work fell partly in the Strict Period and
partly in the Period of Equity; Hale, Rolle, Nottingham,
Clarendon, Vaughan, Somers, Holt, Talbot, Hardwicke, Lord
Mansfield, Thurlow, and Blackstone. There were some law-
yers in this period so bad that they should be mentioned for
their meanness. Chief of these were Scroggs and Jeffreys.

Coke (1551-1633). One of the most famous of the common
law lawyers was Edward Coke. Intellectually he belonged
with the lawyers of the Strict Period, and his work as a prac-
titioner occurred in that period. His father died when he
was ten, and his mother when he was eighteen. His career
went thru the usual stages of a prominent English lawyer.
He attended Trinity College, Cambridge; was a student at
Clifford’s Inn and the Inner Temple; within a year after his
call to the bar was made a reader at Lyons Inn ; soon he was
engaged in almost all the prominent cases; became recorder
of Coventry and London; became solicitor-general, reader on
the Statute of Uses at his Inn ; treasurer of his Inn ; speaker
of Parliament; attorney-general; chief justice of the Com-
mon Pleas (1606) ; and chief justice of the King’s Bench
(1613). Coke acquired a fortune of £30,000 on his first mar-
riage, and five months after the death of his first wife mar-
ried Lady Hatton over his rival, Francis Bacon. This perhaps
was the beginning of the bitter and jealous enmity of Coke
and Bacon. At any rate, they were life-long rivals and ene-
mies. Coke prosecuted Sir Walter Raleigh in a brutal and
disgusting manner, and also the conspirators in the gun-
powder plot, and before he became judge generally tried to
out-Bacon Bacon in flattery of the king; but after he became
judge he became independent, asserted the independence of a
judge, and opposed the king, giving an opinion in opposition
to the Council that the king could not create a new offense.
He was promoted to the chief justiceship of the King’s Bench
on Bacon’s suggestion to further Bacon’s ambitions. Coke
resisted the power of the Court of Chancery presided over by

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Ellesmere, but was defeated in this contest because of a de-
cision of James brought about by Bacon. Coke was removed
from office in 1616, but thru the marriage of his daughter
to a brother of the Earl of Buckingham (which Bacon could
not prevent) he was restored to the Council and was employed
on various commissions. He was returned to Parliament in
1621, when he began a parliamentary career. He spoke
strongly for the remonstrance to the king, and was one of
the managers of the impeachment of Bacon. Tho sent to the
Tower for seven months in 1621 he was back in Parliament
again in 1623. In the first Parliament of Charles I he op-
posed a grant of supply without a redress of grievances, and
in the third Parliament advocated the liberty of the subject
and succeeded in carrying the Petition of Right. Then he
retired and devoted the last five years of his life to writing
his Commentary on Littleton and treatises on Magna Charta,
Criminal Law, and Jurisdiction of Courts (His Four Insti-
tutes). These were seized on his death-bed on the order of
the king, and were only published seven years afterwards
when delivered up to his son by vote of Parliament. He also
published seven volumes of reports. Coke was cold by nature,
and addicted to coarseness and brutality of language at the
bar and on the bench, but he was free from corruption and
was the outstanding champion of the common law as it had
been.

Bacon (1560-1626). Francis Bacon was the son of Sir Nich-
olas Bacon, keeper of the Great Seal, and Anne Cooke Bacon,
an accomplished mother. His legal progress was typical. He
was sent to Trinity College, Cambridge, but left after three
years from disgust with the system of education, and went to
France with Ambassador Paulet, but was summoned home
by the death of his father ; he entered Gray's Inn ; was called
to the bar; entered Parliament; was made a reader at his
inn on the Statute of Uses ; obtained the reversion of the reg-
istrarship of the Star Chamber thru his uncle Burleigh, but
no vacancy occurred for twenty years thereafter; sought ap-
pointment as attorney-general when a vacancy occurred in
that office, but Coke was chosen by Elizabeth and Bacon was
not given even Coke’s position as solicitor-general, but he
was made queen’s counsel ; took an active part in the prosecu-
tion of the Earl of Essex, in order to curry favor with the

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queen, altho Essex had been his friend and greatest bene-
factor; on the death of Elizabeth began to push himself for
office as usual, but was not appointed to any office except
king's counsel until 1607 when he was made solicitor-general;
when on his own suggestion Coke was made chief justice
of the King’s Bench he was made attorney-general in 1613;
and finally in 1616 he was made chancellor, following Lord
Ellesmere. He was an unsuccessful rival with Coke for Lady
Hatton, and a life-long enemy of Coke. He published his
Essays in 1598, and his Novum Organum in 1620. Bacon
was a fulsome flatterer and always pushing himself forward.
The Commons accused him of having received bribes, fined
him £40,000, imprisoned him in the Tower and incapacitated
him from holding office, but the king later remitted the fine
and pardoned him. He was summoned to the Parliament
called by Charles I, but was too sick to attend. He died try-
ing an experiment as to the preservation of meat in snow.
Bacon was a fair orator, an eminent philosopher, a finished
lawyer, an energetic judge, and a man guilty of all the faults
of which he wrote, — depreciation and envy of rivals, adula-
tion of king, ingratitude to friends, encouragement of
despotism, and susceptibility to bribery.

Nottingham (1621-1682). Heneage Finch, Earl of Notting-
ham, has been called the father of equity. He attended Christ
Church, Oxford ; was a member of the Inner Temple, of which
in later life he was treasurer and reader; was called to the
bar and attained a good practice, as is shown by Siderfin’s
Reports ; was returned to Parliament in 1660; a week after
the king’s return was appointed solicitor-general and given
a baronetcy; he was next appointed attorney-general; then
lord keeper of the Great Seal; and finally chancellor in 1675.
Nottingham was a loyalist, and wholly conducted the trial of
the regicides. The trial was fair, but he said that Milton
ought to be hanged. He lived at Kensington, which was later
bought by William as a palace for the king. He was called
the “English Cicero”. He summed up the evidence in the
trial of Lord Morley for murder. He presided as Lord
Steward three times, in the trials of Pembroke, Cornwallis,
and Stafford. He was a man of great ability and incorrupti-
ble. There is not one story to his discredit. He was the
author of the Statute of Frauds, but his principal work was

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in equity. He began to reduce it to a system, and for this
he is still venerated in Westminster Hall.

Somers (1651-1716). John Somers was made chancellor
and a peer (Baron Somers) in 1697. The Tories attacked
him in Parliament and the king asked him to resign; he re-
fused ; but the king ordered him to deliver up the Seal, which
he did in 1700. Prior to this he had gone thru Trinity Col-
lege, Oxford ; been registered at the Middle Temple and called
to the bar; had acquired a good law practice and was one of
the defense of the seven bishops; was chairman of the com-
mittee of the Commons to whom the Declaration of Right was
referred; became solicitor-general; recorder of Gloucester;
attorney-general; and lord keeper. He was a champion of
the Liberal party and published anonymously legal and politi-
cal pamphlets. This hindered his promotion under Charles
II and James II. He was impeached by the Commons, and
dismissed by the House of Lords because of failure to prose-
cute but retained the friendship of King William. During
the life of Queen Anne’s husband he was obnoxious and con-
fined himself to duties in Parliament. In 1708 he was made
lord president of the Council. During the two years he lived
under George I he had a place in the Cabinet without office.
He was president of the Royal Society from 1698-1703, when
he resigned in favor of Sir Isaac Newton. He was eloquent,
honest, modest, a great leader of a great party, and a man
of learning and judgment. His decisions in Chancery are re-
ported in Vernon and P. Williams.

Talbot (1684-1737). Charles Talbot was probably the great-
est chancellor after Nottingham. He had a short but il-
lustrious career upon the bench. He was sent to Oriel Col-
lege, Oxford; entered the Inner Temple and was called to
the bar ; acquired a leading practice in equity courts ; became
solicitor-general, as well as a bencher and reader at the Inner
Temple and Lincoln’s Inn; and was appointed lord chancellor
and made Baron Talbot in 1733. His promotion was cele-
brated by the last of the revels of the Inns of Court. He had
intended to enter the clerical profession, but changed to the
legal profession on the advice of Lord Chancellor Cowper.
His father was a bishop of such extravagance that on two
occasions his son had to pay his debts. He was a most effi-
cient and impartial judge. Because of his patience, discrim-

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ination, and reasonableness, he was praised by both sides.
The following is one story told of him. He had promised
Sir Robert Walpole to give a living to a certain rector. When
the rector came for the living, he mentioned the petition of
the curate to be continued and begged it might be granted.
The rector-expectant answered that he had already promised
it to another. Chancellor Talbot then refused to give the
rector the living, but gave it to the curate instead.

Hardwicke (1690-1764). Chancellor Talbot was succeeded
by Philip Yorke, Earl of Hardwicke, who was the son of an
attorney; attended a private school; studied law under Sal-
keld; was admitted to the Middle Temple and called to the
bar; gained a considerable practice largely due to Lord Mac-
clesfield, chief justice of King’s Bench; became solicitor-gen-
eral ; then attorney-general ; entered Parliament and was
promoted to the House of Lords; became chief justice of the
King’s Bench; and finally in 1737 Lord Chancellor. He mar-
ried a daughter of the sister of Lord Somers. He was ex-
cused from taking part in the impeachment of Lord Maccles-
field. He published a book on the judicial authority of the
master of the rolls in chancery. He refused the office of chief
justice until the salary was raised from £2,000 to £4,000. He
was recorder of Gloucester from 1734 till his son Charles suc-
ceeded him. He did not accept the chancellorship until a
grant in reversion of a fellowship in Exchequer was given
his son, but he retained the Great Seal twenty years, and
during that time made his name illustrious. He was char-
acterized by beauty of person, urbanity of manner, and sweet-
ness of voice; and excited the animosity only of Horace
Walpole. In the absence of the king from England he had
the principal management of the kingdom (with two others, —
the Duke of Newcastle and Robert Walpole). As one of the
lord high stewards he prosecuted the rebels of 1745. He was
made a steward of the University of Cambridge, tho not a
university man. He was made a peer in 1754. In 1756 he
resigned the Great Seal, because the Duke of Devonshire suc-
ceeded the Duke of Newcastle, and refused it on the return
to power again of the Duke of Newcastle. He has been criti-
cised for his partisanship as a statesman; he was not a law
reformer; but he was a man of transcendent abilities as a
magistrate. He was never reversed. Some think his repu-

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tation as a lawyer and judge was never exceeded by anyone
except Lord Mansfield. He was probably the greatest Eng-
lish chancellor, certainly the greatest in the Period of Equity.
Only Sir N. Bacon, Ellesmere, and Eldon held office longer.

Thurlow (1732-1806). Edward Thurlow was the last of the
chancellors in this period. He was a man of great coarse-
ness and great talent combined, and often ranked with Hard-
wicke, but he was not entitled to this distinction. His father
was a rector. As a boy he was contumacious, overbearing,
and insubordinate, and these characteristics continued thru
life. He attended Cains College, Cambridge, until he was
expelled. When once asked if he knew he was talking to
the “dean”, he answered, Yes, and ever afterwards addressed
him as “Mr. Dean” even when he appeared in his court when
he was no longer dean; and he appointed him one. He was
articled with the poet Cowper to an attorney Chapman and
became a member of the Inner Temple, where he was dissi-
pated but studied hard. He was called to the bar; and suc-
cessively accepted a silk gown (King’s counsel) ; took a seat
in Parliament ; became solicitor-general ; attorney-general ;
and in 1778 lord chancellor, which office he held twelve years.
He supported Lord North in Parliament against the United
States. He was out of office nine months after the fall of
North, but resumed office with Pitt. He opposed Pitt and
negotiated with the prince’s friends during the insanity of
the king, and when he next opposed Pitt he was exposed and
removed from office. He was a political chancellor, and failed
as such. His judgments were excellent, but this may have
been due to Mr. Hargrave. His features “made him look
wiser than any man that ever was”. When the Duke of
Grafton twitted him of plebeian origin, he gave him a won-
derful rebuke: “The peerage solicited me, not I the peerage.
As a man I am as respectable and as respected as the proud-
est peer.”

Hale (1609-1676). Sir Matthew Hale was a common law
judge of this period, whose work came shortly after that of
Lord Coke. Of him a learned American judge once said:
“In England, even on rights of prerogative, they scan his
words with as much care as if they had been found in Magna
Charta, and the meaning once ascertained, they do not trouble
themselves to search any further.”46 He was educated at

6 Cow. (N.Y.) 536, note.

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Magdalen Hall, Oxford. He was an athlete and sought pleas-
ures, but not vices. He thought at first of being a divine,
then a soldier; but on the advice of Sergeant Glanville chose
the law; entered Lincoln’s Inn; and was called to the bar,
when he forsook his former vanities. He became proficient
in mathematics, philosophy, medicine, history, theology, and
in the practice of the law. He was a loyalist, defended eleven
members in 1647, offered to plead for the king and gave him
his line of defense (jurisdiction), and defended others ac-
cused of high treason. He subscribed to be true to the Com-
monwealth because it was the existing government, and was
therefore allowed to appear before the High Court of Justice.
Parliament put him at the head of a committee to prevent
delays and expense of the law. Cromwell made him a judge
of the Common Pleas in 1654, but he refused to try offenders
against the state, convicted one of Cromwell’s soldiers of mur-
der, and dismissed a jury returned by Cromwell instead of the
sheriff. Protector Richard refused him a commission. He
then was returned to Parliament, first from the University
of Oxford, then from Gloucestershire, and was manager of
the conference which led to the return of the king. He was
confirmed as sergeant and member of the commission for the
trial of the Regicides. In 1660 he was made chief baron
of the Exchequer, and knighted by surprise. In 1671 he was
made chief justice of the King’s Bench, but resigned in 1676
on account of ill health. He wrote a History of the Pleas of
the Crown, Preface to Rolle’s Abridgement, and an Analysis
of Law, which was the basis of Blackstone’s Commentaries,
and a treatise called De Portibus (Jure) Maris', and was
more than anyone else the founder of the law of public call-
ings. He was a man of the finest character, and one of the
brightest luminaries of the law. He ranks with Holt and
Mansfield.

Holt (1642-1710). John Holt was another common law
judge in the same class with Sir Matthew Hale. He was
the son of a lawyer. He attended Oriel College, Oxford, but
was idle and dissolute. Later he reformed and devoted him-
self to his profession. He entered Gray’s Inn and was called
to the bar at a very early age. From 1679 till James’s reign
he was engaged in most of the state trials, at first for the
prosecution ; but later, because of his disgust over the govern-

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merit’s proceedings, for prisoners. Even Scroggs, Pember-
ton, and Jeffreys treated him with respect. He was given
the recordership of London, the degree of the Coif, and made
a King’s sergeant ; but he was removed from office because he
refused to pronounce sentence of death on a soldier who ran
away from the colors in peace time. He was made chief jus-
tice of the King’s Bench by William in 1689. He and Eyre
resisted the House of Lords when required to give their rea-
sons for a judgment, by refusing to do so unless the case
was taken to the House of Lords on a writ of error. He re-
fused to punish anyone for witchcraft, but put in the stocks
a man who claimed to have been bewitched. He was asked
to be lord chancellor on the removal of Somers; but he ex-
cused himself, saying that he had “never had but one chancery
case and lost that”. However, he acted as commissioner until
the vacancy was filled. His name excited universal admira-
tion. With him began a new judicial era. He kept aloof
from political intrigues. He was not a mere logician, as the
common law lawyers of the previous period had been, but he
was a jurist who believed that justice was more than prece-
dent; common sense more important than tradition. Our
modern law of bailments is one of his contributions to the
reform of the old common law. On one occasion he is said
to have dispersed a mob after telling an officer that he would
hang the soldiers if they shot.

Lord Mansfield (1705-1793). William Murray, Lord Mans-
field, was not only the greatest common law judge, but the
greatest judge of any kind in Anglo-American legal history.
He was born in Perth, Scotland. His father was a landlord.
He attended Christ Church, Oxford, where he was noted for
his oratory and where he took both a B.A. and an M.A. de-
gree. He had been intended for the church, but was enabled
to gratify his natural inclination for the bar by the generosity
of a Lord Foley, father of a friend of Mansfield. He entered
Lincoln’s Inn, was called to the bar at Lincoln’s Inn, and be-
gan practice before chancery. At first he had no encourage-
ment, and lost the girl he wanted to marry; but at the end
of eighteen months he had three appeals before the House
of Lords, one of which was in the South Sea Bubble Case.
Following this he had a great practice. He was solicitor-gen-
eral from 1742 to 1754 and entered Parliament, which was the

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usual thing for a solicitor-general. In 1754 he was made at-
torney-general. He was a great success in Parliament. He
was exceeded only by his antagonist Pitt. He was the prop
of the government under the Duke of Newcastle, and he was
so important that Newcastle tried to get him to give up the
appointment to the chief justiceship of the King’s Bench when
a vacancy occurred, but without avail, and he was made chief
justice of King’s Bench and Lord Mansfield in November,
1756. The Duke of Newcastle soon fell. Mansfield presided
over the King’s Bench for thirty-two years with dignity and
efficiency. He reformed the practice before the court (al-
lowed Turks and Hindoos to swear according to their own
religion) ; founded the commercial law of the country; in-
troduced some of the most important principles into the law
of contracts (implied conditions, moral consideration, illegal-
ity) ; pronounced free a slave brought on English soil ; and
decided that the property in wrecks did not go to the crown
if the owner could identify it tho no living thing came ashore.
In only two cases while he presided was the court not unani-
mous, and only two of his judgments were reversed. He was
made earl in 1776. He declined the office of lord chancellor.
His character, none will surpass. He was liberal and tolerant
of religion. Yet in spite of this he was once attacked by a
mob, which had the usual intelligence of a mob and which
destroyed his library. He was a great oracle of the law. Of
him it has been said “Ninety-nine times out of a hundred he
is right ; when wrong, ninety-nine men out of a hundred would
not discover it.” If he is criticizable at all, it is for continuing
to take part in political debates after he assumed judicial
office.

Blackstone (1723-1780). William Blackstone has exerted
more influence on United States law than perhaps any other
Englishman, and before the system of case instruction came
into vogue here was given a rating above what he was enti-
tled to by American lawyers. Physically he lived in the Pe-
riod of Equity; spiritually he belonged in the Period of
Maturity, with which he made United States law begin. He
was a posthumous son of a silkman, and was educated by his
mother’s brother. He attended Pembroke College, Oxford,
where he specialized in classics and sciences, wrote verses on
Milton, the death of the Prince of Wales, and notes on

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Shakespeare. He was admitted to Middle Temple, called to
the bar, made bursar of his college, and steward of manors.
His progress at the bar was slow and unproductive, and he
had determined to retire in 1753, when Lord Mansfield rec-
ommended him for a professorship on civil law. The Duke
of Newcastle gave the position to another, but on Mansfield's
advice Blackstone read his lectures anyway. He was ap-
pointed professor of law on Viners’ Foundation in 1758. His
treatise on Consideration of Copyholders brought an act of
Parliament giving them the vote. He refused the honor of
the Coif and chief justiceship of the Common Pleas of Ireland,
but resumed his attendance at the bar in 1759. His mar-
riage two years later terminated his fellowship of All Souls,
but he was appointed principal of New Inn Hall and given a
patent of precedence in court and became a member of Parlia-
ment. He published the first volume of his Commentaries
in 1765 and the remaining volumes by 1769. He declined the
solicitor-generalship in 1770, but in the same year accepted
a judgeship in the Common Pleas. He went to the King's
Bench in exchange with Yates, who wished to avoid collision
with Mansfield; but Yates died and Blackstone returned to
the Common Pleas. Blackstone was a distinguished judge;
he also took reports during his life and these were published
after his death ; but his reputation in the United States rests,
for the most part, upon his Commentaries, which came out
just before our country gained its independence, and which
after independence became the chief if not the only law books
in every lawyer's library, and the chief if not the only text-
books for every law student. Blackstone devoted the later
years of his life to the reform of prison discipline, and the
increase of judges' salaries £400. His corpulence increased
in late life due to lack of exercise and the studious habits of
his youth.

Other lawyers of the Period of Equity who should be men-
tioned are Henry Rolle (1589-1656), who compiled an
Abridgement of Cases and Resolutions of Law, sided with
the Puritans and was made chief justice of the King's Bench
by the Commons in 1748; Edward Hyde (1608-1674), Earl
of Clarendon, who was an enemy of Cromwell, resided with
Charles II during his exile, and returned as chancellor in 1660 ;
John Vaughan (1603-1674), who put an end to the practice

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of fining juries and who once exclaimed, “What sin have I
committed that I should sit on a bench with two judges who
boast in open court of their ignorance of the canon law?”
William Scroggs (-1683) , chief justice of the King’s Bench for
a time under Charles li, who was ignorant, arrogant, and
brutal, and whose conduct of the trial of those engaged in the
Popish plot was outrageous; George Jeffreys (1648-1689),
chief justice for a time under Charles II and lord chancellor
under James II, the worst judge who ever disgraced West-
minster Hall, drunken, partial, brutal, who executed 330 as
traitors and transported 800 more in the “bloody assize” and
burned Elizabeth Ganut alive; Lloyd Kenyon (1732-1802),
Mansfield’s successor on the King’s Bench, offensive in
manners, but honest and independent as a judge; and John
Selden (1584-1654), lawyer and man of letters, who gave a
library of 8,000 volumes to the Bodleian library.

Period of Maturity. The Period of Maturity in England
was not as rich in names as the Period of Equity, yet there
were many lawyers of eminence in this period, and some re-
formers who were imbued with the spirit of the Period of
Equity. We shall refer first to those worthy of somewhat
extended treatment, and then more briefly to a few others.

Bentham (1748-1832). Jeremy Bentham, who has been
called the father of legislative reform, and who has had many
followers who have taken the name of Benthamites, was the
son of a London attorney, studied at Queen’s College, Oxford,
and Lincoln’s Inn, and then devoted most of the rest of his
life to writing and reform. He published a Fragment on
Government in 1776 during an attack on Blackstone’s theories
in the first volume of his Commentaries, and an Introduction
to Principles of Morals and Legislation in 1789. This was
followed by Panoptican, a model prison. In 1792 he came into
a fortune on the death of his father. He advised the leaders
of the French Revolution. In 1814 he retired to his country
estate, where he devoted himself to the poor laws, recasting
of the law of evidence, and amplification of judicial procedure.
He criticized Blackstone, but praised Mansfield. Bentham
ought to have lived in the Period of Equity or the Period of
Socialization, and Blackstone in the Period of Maturity.

Romilly (1757-1818). Samuel Romilly was one of the fol-
lowers of Bentham. He was born in London, and was the

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son of a jeweler and Huguenot refugee. He attended Gray’s
Inn; became a leader of the chancery bar; solicitor-general;
and went into the House of Commons; and after he left the
office of solicitor-general, as a legislator, devoted himself to
the reform of criminal law, and wrote Observations on the
Criminal Law of England. He opposed confinement in hulks,
penalty for treason and attainder, and suspension of the writ
of habeas corpus. He was opposed by Lord Ellenborough
and at first could make no progress, but at last he triumphed
by opening the eyes of England. In 1808 was repealed the
statute making it a capital offense to steal from a person, and
in 1812 the statute making it a capital offense for a soldier
to beg without a pass from a magistrate or officer. Romilly’s
name became famous all over Europe.

Brougham (1778-1868). Henry Brougham was another fol-
lower of Bentham who carried on reform work after the death
of Romilly. He was born in Edinburgh and educated at the
University of Edinburgh. He published articles on “Light”
and other topics in physics, and on the abolition of the slave
trade, and helped to found the Edinburgh Review in 1802. He
left Edinburgh for London and was called to the bar by Lin-
coln’s Inn in 1807. He practiced before the House of Lords
and the Privy Council, and by his eloquence procured a seat
in Parliament in 1810, and in 1880 was called to the House
of Peers. He acquired the leadership of his party. No ques-
tion ever found him unprepared. His legal fame in the pop-
ular mind was established by his great defense of Queen
Caroline, whom he defended so well that a bill of pains and
penalties brought against her charging adultery was with-
drawn. This so incensed the king that on the advice of Lord
Eldon he refused Brougham a silk gown, but under Lord
Lyndhurst, Brougham received a patent of precedence. He
refused a baronship in the Exchequer to remain in the House
of Commons. When the Whigs came into power under Wil-
liam IV he was made lord chancellor in 1830, and exerted his
energies for the passage of the Reform Bill. He went out
with his party in 1884, and was not reappointed in 1835, but
continued to attend regularly on the hearing of appeals in the
House of Lords and to further reforms. He was made lord
rector of Glasgow in 1825, and chancellor of the University
of Edinburgh in 1860. The carriage called “brougham” was
named after him.

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Erskine (1750-1823). Thomas Erskine also was born in
Edinburgh. From 1764-1768 he was a midshipman and vis-
ited America. In 1768 he entered the army and became lieu-
tenant in 1773; but he sold his lieutenancy and entered
Lincoln’s Inn in 1775 and Trinity College, Cambridge, in 1776.
He was called to the bar in 1778. By this time his circum-
stances had become very straitened. He had married in 1770.
His first case was a defense of Captain Baillie, and his ora-
tion against Lord Sandwich was so great that retainers
came in from all sides. He became affluent and connected
with all important litigation thereafter. He was given a
patent of precedence only five years after his admission to the
bar. He became a member of Parliament and supported Fox
so hard that on the accession of Pitt he was made “one of
Fox’s martyrs”. His oratory was better in the courtroom
than in Parliament. His arguments in libel suits in favor of
the jury’s power led to the enactment of Fox’s Libel Act in
1792. He was attorney-general to the Prince of Wales, but
was asked by him to resign in 1793 because he insisted upon
defending Paine’s Rights of Man. He argued against con-
structive treason in the case of Tooke et al. ; and not only got
their acquittal, but freedom of speech and of the press in Eng-
land. On Pitt’s death he was made lord high chancellor
(1806), and made a most satisfactory record, but kept the
office only fourteen months, giving up the Great Seal because
George III refused to sanction the bill giving Roman Catholics
commissions in the army (altho he had been adverse to the
measure) . During the next fifteen years he was a man of
the world, but in 1817 he appeared against restrictive meas-
ures. In 1820 he defended Queen Caroline and in his last
speech in Parliament sounded the deathknell of bills of pains
and penalties. He was courteous, witty, and honorable, but
inclined to self-glorification, and lost his wealth in specula-
tion. He was a lover of freedom, advocated protection for
farmers, gave us liberty of speech and of the press, and re-
forms of the law of slander and libel. He was one of Eng-
land’s greatest orators and dedicated his great abilities to
causes that were often unpopular but always the most noble.

Lord Stowell (1745-1836). William Scott (Lord Stowell)
was the eldest brother of John Scott (Lord Eldon). He was
a reader in ancient history at Oxford, a friend of Dr. Johnson,

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and an authority on shipping law. He was called to the bar
in 1779, and practiced in the Ecclesiastical Courts until 1821.
In 1788 he was a judge of a Consistory Court. He entered
the House of Commons in 1790, where he was a persistent
opponent of all reform. He was judge of the High Court
of Admiralty from 1798 to 1827 and was made a peer by
George IV. In the High Court of Admiralty he was more
of a lawgiver than a judge and established the principles of
admiralty law for England. Some of the doctrines of interna-
tional law with which his name is identified are: that all
states are equal and independent; that semi-barbarous states
are bound by the rules of international law; that a block-
ade must be effectual to be binding; that contraband of war
is determined by its destination; and that a prize court is a
court of the law of nations.

Lord Eldon (1751-1838). John Scott (Lord Eldon) was a
brother of Lord Stowell, and the son of a coal dealer who
transported coal. Lord Stowell, while a tutor at Oxford, pur-
suaded his father to send John to Oxford and he took his
B.A. there in 1770. Two years later he ran away with the
daughter of a banker of Newcastle. This marriage, tho
quickly forgiven by the parents, lost John Scott a fellowship
and provision in the church. He adopted law as the alterna-
tive, entered the Middle Temple and took his M.A. in 1773;
but working both at Oxford and the Inn endangered his health.
However, he moved to London in 1775, studied in an office,
and was called to the bar the next year; but his receipts
during the first year amounted to half a guinea. Thinking
Lord Mansfield favored lawyers educated at Westminster and
Christ Church, he joined the chancery bar; but his business
continued so small that he was about to give up, when he won
a celebrated case, and obtained an important election case,
and thereafter his success was assured. Lord Thurlow fa-
vored him and got him into Parliament where he supported
Pitt against Fox. Afterwards he became successively chan-
cellor of Durham; solicitor-general; attorney-general (when
he conducted the prosecutions of Tooke et al. for constructive
treason) ; chief justice of the Common Pleas — given him on
condition that he accept a peerage and that he accept the
chancellorship as soon as it should become vacant; and lord
chancellor. He took this office in 1801, resigned when Fox

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and Granville came in in 1806, but resumed his seat in 1807
and kept it for twenty years. He resigned when Canning
succeeded Lord Liverpool, and was followed by Lord Lynd-
hurst. While he was in practice his income became such
that he purchased the estate of Eldon for £22,000. In 1816
a mob broke into his house, and the House of Commons kept
attacking him and his court. He did perhaps more than any
other chancellor to reduce equity to a system. He was a
man of extensive learning-, courteous and just in his decisions,
but slow and unprogressive.

Tenterden (1762-1832). Charles Abbott (Lord Tenterden)
was one of the able judges of the King’s Bench. He suc-
ceeded Lord Ellenborough as chief justice in 1818 after he had
served as judge for two years, and was made Baron Tenterden
in 1827. He was a man of common sense and justice, and
introduced bills for the limitation of actions and for uniform-
ity of procedure, altho he opposed many other reform bills.
He was the son of a wigmaker and hair-dresser, made a fine
record in grammar school and at Oxford, and specialized as
special pleader and was junior counsel when Lord Eldon,
Redesdale, and Ellenborough were attorneys-general.

Campbell (1781-1861). John Campbell is noted for his
Lives of the Lord Chancellors and Lives of the Chief Justices,
which are invaluable sources of information about these great
English judges, but which contain too much Campbell, and
are not as reliable as Foss’s Lives. He also was chief justice
of the Queen’s Bench for nearly ten years and held the office
of lord chancellor for sixteen days, when he died from the
bursting of an artery. He was indefatigable in all of his
pursuits and succeeded well as judge in both the Queen’s
Bench and Chancery, in spite of the fact that the practice in
chancery was new to him. He attained these offices after
prior experience typical of English judges. He was a gradu-
ate of the University of St. Andrews; entered Lincoln’s Inn
and Mr. Tidd’s office ; was reporter on the Morning Chronicle ;
reporter of cases; king’s counsel (thru the influence of his
father-in-law, Lord Abinger) ; solicitor-general; attorney-gen-
eral; and lord chancellor of Ireland and chancellor of the
duchy of Lancaster. Thruout life he was a conservative Whig.

The other lawyers of this period who should be mentioned
are Alexander Weddenburn (Lord Loughborough) (1733-

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1805), who was lord chancellor from 1793 to 1801, was full
of intrigues, obtained this high office by intrigue, and lost
it to Lord Eldon in 1801 because of his intrigues; Edward
Law (Lord Ellenborough) (1750-1818), who as chief justice
of the King’s Bench, succeeding Kenyon, showed great learn-
ing and integrity but was petulant and intolerant, opposed
Romilly’s reforms and all other changes, was a bigot and gen-
erally overrated;47 John Singleton Copley (Lord Lyndhurst)
(1772-1863), who was lord chancellor three different times
following Lord Eldon, bore an unsullied name, and was a
consistent Conservative, resisting reforms in Parliament ;
Thomas Denman (1779-1854), who followed Lord Tenterden
as chief justice of the King’s Bench and was an outstanding
liberal, advocating the reform of the criminal law and showing
the same independence on the bench which distinguished him
at the bar; Charles Christopher Pepys (Earl of Cottenham
(1781-1851), who as lord chancellor made a most excellent
judge tho he was an indifferent advocate; Bethel Richard
Westbury (1800-1875), another lord chancellor who devoted
himself to the improvement of legal education and the reform
of divorce and land registry; Alexander James Edward Cock-
burn, a great advocate, a good chief justice, and a liberal
who opposed the Judicature Acts; and James Parke (Lord
Wensleydale) (1782-1868), who succeeded Holroyd as judge
on the King’s Bench, was removed with Alderson to the Ex-
chequer in 1834 in order to strengthen the court, after his
resignation was raised to a peerage so that he could hear
appeals in the House of Lords, and who is known chiefly for
his intense conservatism.

Period of Socialization. Only a few English lawyers in the
Period of Socialization will be mentioned.

Selbourne (1812-1895). Roundell Palmer Selbourne’s fame
rests upon the Judicature Acts. He was part author of the
Judicature Act of 1873 and responsible for its passage. He
was a judge of high qualities and a very religious man. His
father was a rector. He attended Rugby, Winchester, Trinity
College, Oxford, and was a fellow of Magdalen College. After
his call to the bar, he became queen’s counsel, member of
Parliament, solicitor-general, attorney-general, and lord chan-
cellor. He opposed the Crimean War and the Second Opium

47 Street, Foundations of Legal Liability, 286.

11—86004

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War with China, and he finally parted with Gladstone politi-
cally over Home Rule and the disestablishment of the Church
of England. He published a hymn book and other religious
books.

Pollock (1845-). Sir Frederick Pollock is a grandson of Sir
Jonathan Frederick Pollock, at one time chief baron of the
Exchequer. He was born in London, and after his call to
the bar has spent his life as professor of law and law writer.
He has taught in University College, London, Oxford Uni-
versity, and the Inns of Court; he has been editor of the
Law Quarterly Review; but he is known chiefly for his au-
thorship of textbooks on Contracts and Torts and History
of English Law (in collaboration with Maitland). He is a
man of great learning and progressive ideas, and perhaps
the greatest living English jurist.

Other lawyers of this period were Charles Russell (Russell
of Killowen) (1832-1900), who was counsel for Great Britain
in the Behring Sea Controversy, took Lord HerschelFs place
in the Venezuelan Arbitration, and was chief justice of the
King’s Bench; Joshua Williams (1813-1881), a conveyancer,
professor of law and author of textbooks on property; and
Frederick William Maitland (1850-1906), another conveyancer
and professor of law (at Cambridge) who is famous as a ju-
rist and historian.

CHAPTER XVI

GREAT LAWYERS OF THE UNITED STATES

The United States has no reason to be ashamed of the great
lawyers it has produced. The legal history of the United
States is short. It covers a period of only about a century
and a half. Yet during that time enough great lawyers have
appeared to make any nation proud, and the memories of
many of them will be cherished as long as this nation shall
endure.48

Chief Justices. Some of the great lawyers of the United
States have been chief justices of the Supreme Court of the
United States, a tribunal which in dignity and importance has
no superior on earth. Not every one of the chief justices
has been a lawyer of the first rank, but among the entire num-
ber there is not one who should be condemned to oblivion for
his mediocrity. In all there have been ten chief justices,
counting J. Rutledge (1739-1800) given a recess appointment
in 1795 and not confirmed by the Senate. Of these by far
the greatest was John Marshall. We shall briefly refer to
each one in the order in which he held office.

Jay (1745-1829).49 John Jay was the first chief justice of
the United States Supreme Court. He was appointed by
Washington, who always tried to exercise a wise judgment in
his appointments; held office from 1789 to 1795; and was re-
appointed by John Adams in 1800 but declined the appoint-
ment. He was born in New York; was descended from
French Huguenots; studied law in an office; was acquiring a
good practice when he was drawn into politics; was a dele-
gate to the First Continental Congress; was the author of
addresses to the People of Great Britain, to the People of
Canada, and to the People of Ireland; prepared the bill of
rights of New York and the constitution of New York; was
chief justice of New York; was sent to Congress; was sent
as a diplomat to Spain to borrow a million dollars and to
get the freedom of the Mississippi River; with Franklin and
Adams negotiated the Treaty of Peace; was special envoy to
Great Britain; and resigned the chief justiceship to become

48 Beveridge, Life of John Marshall; Warren, Supreme Court in United States His-
tory; Carson, The Supreme Court of the United States; Lewis, Great American Lawyers.

49 13 Green Bag 1 ; 6 Col. L. Rev. 289.

(163)

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governor of New York. He was not a member of the Federal
Convention, but contributed five papers to the Federalist, tak-
ing the position that the geographical divisions of the United
States were like counties, which showed that he was an ultra-
federalist. He was not profoundly learned in the law, but
he was a statesman, and a man whose character was above
reproach. Of him it was said that “when the judicial ermine
touched his shoulders it touched nothing not as white as it-
self”. One of his principal decisions was Chisholm v .Georgia.50
It was fitting that a man of his character should be first chief
justice of the Republic.

Ellsworth (1745-1 80 7). 51 Oliver Ellsworth was the third
chief justice appointed by Washington, and held office from
1796 to 1800. He was in many respects the opposite of Jay.
He was an extreme localist and states-rights man, and was
opposed to a federal government; but supported it after it
was adopted. He was slow and ponderous, but dignified, con-
scientious, and courageous. He was sent as one of three
envoys to France in 1800, but resigned because he was not
fitted for diplomacy. His decisions are of no importance. He
was born in Windsor, Conn. ; graduated from Princeton ; read
law and was admitted to practice ; was a delegate to the Con-
tinental Congress; was a judge of the Superior Court of Con-
necticut; and was a member of the Federal Convention. He
fought for the recognition of the states and our dual form of
sovereignty; urged the compromise between the small and
large states; but was absent the last day of the convention
so that he did not sign the Constitution. He was the author
of the First Judiciary Act (1789), which many think required
the judges unconstitutionally to sit on circuit.

Marshall (1755-1835). 52 The fourth chief justice was John
Marshall, who was appointed by John Adams on January
31, 1801, and presided as chief justice until 1835. This was
the longest, the most honorable, and the most successful judi-
cial career that any man in the United States has ever had.
Marshall was born in Germantown, Fauquier County, Va.
His paternal grandfather was a Welshman. His father was
associated with Washington under Lord Fairfax. As a boy

50 2 Dallas 419.

51 13 Green Bag 503.

52 13 Green Bag 53, 157, 213 ; 33 Am. Rev. 1 ; 34 Am. L. Rev. 550 ; 23 Case and
Com. 809 ; Beveridge, Life of John Marshall.

Wilhs : Anglo-American Law 165

Marshall delighted in sports. This gave him health. He was
not studious, but was full of day-dreams. He studied with
Monroe under a clergyman and later under his father. He was
a lieutenant in militia during most of the Revolutionary War,
and was with Washington at Valley Forge, where because of
his bouyancy of spirit he was of invaluable assistance in keep-
ing up the morale of the army. He began to attend law
lectures under Wythe at William and Mary College in 1779
until he met and married Mary Ambler. He was admitted to
the bar in 1780; became a member of the lower house of
Virginia in 1782; supported the Federal Constitution in 1788
with Madison against Henry, Mason, and Grayson; argued
the famous British debt case before the Circuit Court of the
United States in opposition to Henry in 1796; defended the
Jay Treaty; argued the case of Ware v. Hylton 53 before the
Supreme Court (his only case) ; declined the attorney-general-
ship of the United States ; accepted a mission to France with
C. C. Pinckney and Gerry, where he snatched the laurels from
Talleyrand; became a member of Congress, at the solicita-
tion of Washington; accepted the office of secretary of state;
and then became chief justice. Until near the close of his
term he dominated all his associates upon the supreme bench.
Unlike Mansfield he wrote long opinions, but they were lucid
and convincing, and in them he laid the foundations of our
government. He was neither an extreme states-rights man
nor an extreme federalist ; he thought that the federal govern-
ment was a federation rather than a league of states, and the
states more than mere administrative units, and he established
this proposition as a part of our constitutional law by holding
that our Constitution was a constitution rather than a com-
pact and that the nation was sovereign within its sphere the
same as the states were within their spheres.54 He also
settled the supremacy of the Supreme Court, not only over the
other branches of the federal government,55 but over the courts
of the states.56 By his hand the framework of our govern-
ment was moulded and shaped into complete form. On Con-
stitutional questions where there were no precedents to guide
him he was never equaled by any other judge living or dead.

53 3 Dallas 199.

34 McCullough v. Maryland, 4 Wheat. 316 ; Gibbons v. Ogden, 9 Wheat. 1.

35 Marbury v. Madison, 1 Cranch 137.

36 Cohens v. Virginia, 6 Wheat. 264.

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He was the greatest judge and perhaps one of the two greatest
constitutional lawyers the United States has ever produced.
He was a soldier of distinction, a legislator of power, a
diplomat of skill, a historian of accuracy, a statesman of en-
lightenment and patriotism, a magistrate of dignity, a judge
of profundity and compelling, irresistible logic, and a man
whose character commanded respect and obedience.

Taney (1777-1864). 57 John Marshall’s successor and the
fifth chief justice of the Supreme Court was Roger B. Taney,
who was appointed by Andrew Jackson and presided for an-
other long period from 1836 to 1864. Taney was an experi-
enced trial lawyer, and probably entitled to higher rank as a
justice than ordinarily given. He was born in Maryland
and was a Catholic, and procured his education at Dickinson
College and in the law office of Jeremiah T. Chase. He
practiced law in Fredericktown against Pinckney, Martin, and
other great lawyers of the day. In 1823 he moved to Baltimore
and came into competition with Wirt. In 1827 he became
attorney-general of Maryland, and in 1831 attorney-general
of the United States under Jackson. He was nominated for
the secretaryship of the treasury, but the nomination was re-
jected because of his opposition to the United States Bank. In
the same way a nomination for justice to take Duvall’s place
was not confirmed. But when he was nominated for chief
justice on Marshall’s death he was confirmed, tho opposed by
Clay. He was a strict constructionist and technical, but did
not undo the work of Chief Justice Marshall so far as it related
to the fundamental characteristics of our government. The
one spot on his record was the “Dred Scott”58 decision. In
correcting Marshall’s “Dartmouth College”59 decision he did
an admirable piece of work. His judicial style was commend-
able. In character he was a man of the highest integrity,
simplicity, and purity of life.

Chase (1808-1875). 60 The sixth chief justice was Salmon
P. Chase. He was appointed by Lincoln, who generously
overlooked his personal affronts and political disloyalty, in
order to appoint a strong man on the supreme bench. Chase
was born on a farm in Cornish, N.H. ; graduated at Dart-

57 22 Green Bag 149; 46 Am. L. Rev. 1; 18 Yale L. Jour. 10.

58 19 How. 393.

59 4 Wheat. 518.

60 7 Green Bag 313.

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mouth; studied law under William Wirt; was admitted to the
bar and practiced law at Cincinnati; became a leader of the
anti-slavery men ; entered the United States Senate, where he
fought the Kansas-N ebraska Bill; became governor of Ohio;
re-entered the United States Senate in 1861, but resigned to
become secretary of the treasury under Lincoln ; and was chief
justice of the United States from 1864 to 1873. As a financier
he ranks with Robert Morris and Alexander Hamilton. He
was the author of the Legal Tender Acts, and as chief justice
declared his own acts unconstitutional. His opinions were
mostly on questions of international law and prize cases, but
he rendered one important constitutional decision, Texas v.
White,61 in which he established the proposition that our
government is an indestructible union of indestructible states
by holding that the seceding states had never legally been out
of the Union. He presided with fairness over the impeach-
ment trial of President Johnson. He filled the position of
chief justice well, but he could not drop his political intrigues,
and still sought the presidency.

Waite (1816-1888). 62 The seventh chief justice was Morri-
son R. Waite. He was appointed by U. S. Grant, presided
from 1874 to 1888, and after Marshall was one of our greatest
chief justices. He was born in Lynn, Conn., and was a
descendant of Thomas Waite, who signed his name to the
death warrant of Charles I. He graduated from Yale; studied
law in his father’s office; practiced law in Maumee City and
Toledo, Ohio; became a leader of the Ohio bar, tho his ex-
perience as a trial lawyer was somewhat narrow; and was
one of the counsel of the United States before the Geneva
Arbitration Tribunal. While he was chief justice, the
Supreme Court passed on the “War Amendments”, and es-
tablished the principles of constitutional law upon the regula-
tion of the railways, interstate commerce, public callings,
polygamy, presidential removal from office, Legal Tender Acts,
liquor traffic, repudiation of state debts, Chicago anarchists,
and Chinese exclusion. Waite was a man of great intellectual
and moral endowments, impartial in Reconstruction days, and
a model of deportment. No disorder or levity was ever at-
tempted in his presence. He believed in restricting the ex-
tension of the powers of the federal government. While per-

61 7 Wall. 700.

62 15 Green Bag 223 ; 22 Am. L. Rev. 301.

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haps not as great a justice as Samuel F. Miller, with whom
he was associated, he was one of the greatest of the judges
who have sat upon the supreme bench. One of his great
opinions was rendered in the case of Munn v. Illinois 68

Fuller (1833-1910). 64 The eighth chief justice was Melville
W. Fuller. He was appointed by Cleveland and presided from
1888 to 1910. He was pre-eminent at the bar of the Middle
West, was fluent in speech, and ready with the pen, but was
not eminent as a judge. He was born in Augusta, Me.;
graduated from Bowdoin and Harvard Law School ; practiced
for a short time in Augusta and thereafter in Chicago; was
a member of the Venezuela Boundary Commission; and was
one of the peace commissioners at The Hague. He wrote
opinions in the case of Pollock v. Farmers’ Loan and Trust
Co.,65 in which the income tax law was nullified; in the
Northern Securities Case,66 where a railway merger was
held to violate the Sherman Anti-Trust Law ; in the
Danbury Hatters’ Case,67 where a labor union was brought
within the condemnation of the Sherman Anti-Trust Law; in
the case of Inman v. So. Car. Ry.,68 where it was held that a
railway cannot limit its liability for negligence; and in Leisy
v. Hardin,66 where the Iowa prohibition law was nullified under
the original package doctrine.

White (1845-1921). 70 Edward D. White was the ninth
chief justice. He was appointed chief justice by Taft in
1910 and held the office until 1921, but he had previously been
appointed associate justice by Cleveland in 1894. He was
born in La Fourche Parish, La.; was educated at Catholic
colleges; served in the Confederate army; was justice on the
Louisiana Supreme Court; and was United States senator at
the time of his appointment by Cleveland. He dissented in the
Northern Securities Case, but wrote the majority opinions
in other trust cases. He was a man of simplicity and kind-
ness. His legal knowledge was adequate. His judgments were
wise and fearless. His commanding presence lent dignity to

63 94 U.S. 113.

G4 22 Green Bag 437, 526 ; 44 Am. L. Rev. 751.

65 1 58 U.S. 601.

66 193 U.S. 197.

67 Loetve v. Laivler, 208 U.S. 274.

68 1 29 U.S. 128.

69 135 Z7„S. 100.

70 2 3 Green Bag 102 ; 45 Am. L. Rev. 321.

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169

the supreme bench. He in every way made a satisfactory
record as chief justice.

Taft (1857- ).71 The tenth and present chief justice is

William Howard Taft. He was appointed by Harding in
1921. Perhaps no one who has ever presided over the
Supreme Court has ever had a more versatile career and a
wider preparation for his work. He was born in Cincinnati,
Ohio. He is a son of Alphonso Taft, who was at different
times secretary of war, United States attorney-general, and
minister to Austria and to Russia. William H. Taft graduated
from Yale in 1878, second in his class, and from the Cin-
cinnati College of Law in 1880. Soon thereafter he began to
hold office, and before his appointment to the Supreme Court
he had held the following offices, one after another : assistant
prosecuting attorney, collector of internal revenue, judge of
Superior Court of Ohio, solicitor-general of the United States,
United States circuit judge, president of the United States
Philippine Commission, secretary of war, president of the
United States, and professor of law at Yale University. Chief
Justice Taft is interested in the reform of federal legal pro-
cedure so as to make it conform so far as possible with the
modern English legal procedure, and if the Supreme Court
is clothed by Congress with the requisite power it is to be
hoped that any reactionary influences in the Supreme Court
will not be strong enough to defeat the carrying out in de-
tail of Chief Justice Taft’s purpose.

Associate Justices. Among the associate justices who have
sat upon the supreme bench there have been at least three of
such commanding ability and inffuence that some special
reference to them should be made. They are justices Story,
Miller, and Holmes.

Story (1779-1845). 72 Joseph Story was an associate justice
of the United States Supreme Court from 1811 to 1845. The
larger part of this time Marshall was chief justice, and Story
fell under the sway of Marshall’s genius, but this in no way
detracts from Story’s reputation. He was a great judge and
fitted to be associated with the great Marshall. He was born
at Marblehead, Mass.; graduated from Harvard in 1798; be-
gan the practice of law at Salem in 1801 ; was sent to the

71 20 Green Bag 337 ; 93 Central L. Jour . 93.

72 1 Green Bag 12 ; 9 Green Bag 49 ; 16 Case and Cow i, 213.

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legislature in 1805 as a Republican (Democrat) ; became a
member of Congress in 1808; and was appointed associate
justice by Madison in 1811. In 1829 he also became Dane
professor of law at Harvard. He was the author of textbooks
on the subjects of bailments, constitutional law, conflict of
laws, and equity, all of which were learned treatises and re-
ceived high rank in England as well as the United States.
Justice Story, while on the supreme bench, did for the ad-
miralty law of the United States a work comparable with the
work of Lord Stowell for the admiralty law of England.
Justice Story is entitled to be ranked as one of our best law
teachers, one of our best law writers, and one of our best
judges.

Miller (1816-1890). 73 Samuel F. Miller was associate
justice of the United States Supreme Court from 1862 to 1890.
During most of this time Morrison R. Waite, one of our
greatest chief justices, presided over the Supreme Court, but
many regard Miller as the leading member of the court while
he was on it, and some regard him as second in ability only
to Marshall himself. He was born in Kentucky and practiced
medicine for ten years, but then he began to take part in
debates, got interested in the law, read it secretly, was ad-
mitted to the bar, and began to practice law. He moved to
Iowa in 1850, and became an ardent anti-slavery advocate and
Republican leader in Iowa. He emancipated his own slaves.
At the time of his appointment on the Supreme Court he
had no national reputation as a lawyer, but Lincoln appointed
him nevertheless, and subsequent events vindicated Lincoln’s
judgment. Miller’s work in construing the slavery amend-
ments is comparable to that of Marshall in construing the
main Constitution. He was like Mansfield in that he was
wont to sweep away precedents that justice might prevail.
Some of his great opinions were rendered in the Slaughter
House Cases, 74 Hepburn v. Griswold,75 Loan Ass’n v. Topeka,76
United States v. Schurz 77 and In re Neagle.78

73 17 Yale L. Jour. 422 ; 94 Central L. Jour. 187 ; 10 Am. Bar Assn. Jour. 406.

74 16 Wall. 36.

75 8 Wall. 603 (dissent).

76 20 Wall. 655.

77 102 U.S. 378.

78 135 U.S. 1. See also his dissent from the doctrine of the Dartmouth College Case
in Washington University v. Rouse, 8 Wall. 439, another instance of where his minority
position was in the course of time to become the majority position of the Supreme
Court.

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171

Holmes (1841-).79 The greatest judge who has sat upon
the supreme bench since Miller is Oliver W. Holmes, Jr.
Chief Justice Taft has called him “the most brilliant and
learned member” of the Supreme Court at the present time.
He was appointed associate justice by Roosevelt in 1902 and
is still sitting upon the bench. He is a son of the essayist;
was born in Boston ; graduated from Harvard and the Harvard
Law School; and served in the Civil War, where he was
wounded at Ball’s Bluff, Antietam, and Fredericksburg. After
the Civil War he practiced law in Boston and for three years
was the editor of the American Law Review . In 1882 he
became professor of law at Harvard, and in that year his
judicial career also began. He was associate justice of the
Massachusetts Supreme Court from 1882 to 1899, and chief
justice from 1899 to 1902 when he was appointed to the
United States supreme bench. Justice Holmes has published
an edition of Kent’s Commentaries, his Collected Papers, and
The Common Law, a book recognized on both sides of the
Atlantic as a legal masterpiece. Justice Holmes is one of the
greatest jurists this country has ever had. He is a master
of legal philosophy as well as legal history, yet does not for-
get the practical needs of the day; and is the possessor of a
literary style, full of wise maxims, sententious summaries,
and pithy brocards, worthy of his distinguished father. He
has had an open-minded progressive viewpoint and has done
as much as any other single man in the United States towards
the socialization of the law. He has tried to “conserve the
(other) rights of men as well as those of property”. Some
of his best known opinions are found in the cases of Noble
State Bank v. Haskell ,80 Schenck v. United States,81 Lockner
v. New York ,&2 and Adair v. United States 83 He is one judge
who has thought thru the general truths of life, has framed
a system of legal ideas, and in his constitutional decisions
recalls us to the traditions of Marshall. He is known wherever
the common law is studied. Honorary degrees have come
to him from Amherst, Williams, Yale, Harvard, Berlin, and
Oxford.

79 29 Harv. L. Rev. 601, 702 ; 10 III. L. Rev. 617 ; 7 Am. Bar Assw. Jour. 359.

80 219 U.S. 104 (police power) .

81 249 U.S. 47 (sedition).

82 1 98 U.S. 45 (dissent).

83 2 0 8 U.S. 161 (dissent).

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State Judges. There have been a great many state judges
of outstanding importance. We shall give short accounts of
only Kent, Cooley, Shaw, Dillon, Mitchell, and Cardozo. There
are many others who have many claims for recognition but
the nature of this treatise will not permit of it herein.

Kent (1763-1847). 84 James Kent was one of the greatest
United States lawyers. He was born in Fredericksburg,
N.Y. He graduated from Yale in 1781, and was one of the
founders of Phi Beta Kappa. He began practice in
Poughkeepsie in 1785 ; had two terms in the New York legisla-
ture; was professor of law in Columbia from 1793 to 1797;
was recorder of New York for one year; became judge of the
state Supreme Court in 1798; was made chief justice in 1804;
was chancellor of the state from 1814 to 1823; and then
terminated his judicial career and again became professor
of law and continued as such until his death. He published
his Commentaries on American Law between 1826 and 1830.
If he had remained on the bench these commentaries would
probably never have been written. It is interesting to note that
most of the great law textbooks have been written by law
teachers. William Wirt urged Monroe to appoint Kent upon
the Supreme Court, and in spite of the fact that Kent differed
from Monroe in politics Monroe might have appointed him had
not Smith Thompson finally accepted an appointment already
tendered to him. It is too bad that politics were not dis-
regarded in the first place, because Kent was singularly fitted
for the supreme bench and was entitled to the honor.

Shaw (178 1-186 1).85 Lemuel Shaw was born in Barnstable,
Mass.; graduated from Harvard; was first admitted to the
New Hampshire bar and later to the Massachusetts; was a
member of the Massachusetts legislature and state senator for
years; and was chief justice of the Massachusetts Supreme
Court from 1830 to 1860. He opposed the passage of the
Fugitive Slave Law but upheld its constitutionality. He de-
feated the attempt to lower the salaries and to abolish life
tenure for judges in Massachusetts. Many notable opinions
are credited to him, and he helped to settle many of the prin-
ciples of law. This is especially true with reference to equity,
water rights, and carriers. He was one of our greatest state
judges.

84 17 Yale L. Jour. 311, 553; 7 Am. Bar Assn. Jour. 662.

85 1 Green Bag 89.

Willis: Anglo-American Law

173

Cooley (1824-1898). 8G Thomas M. Cooley was born at
Attica, N.Y. ; removed to Michigan in 1843 and was admitted
to the bar in 1846 ; was reporter of the supreme court in 1858 ;
was professor of law in the University of Michigan from
1859 to 1885; was justice of the Michigan Supreme Court
from 1864 to 1885; and was a member of the Interstate Com-
merce Commission under Cleveland. As a result of his law-
teaching he published textbooks on Constitutional Limitations,
Taxation, and Torts, all books of the first rank. As a judge
he was in the same class with Chancellor Kent and Chief
Justice Shaw. As a law writer he was in a class with Story.
As a law teacher he gave the Michigan Law School a reputa-
tion all over the Middle West.

Dillon (1831-1914). 87 John F. Dillon was born in New
York state, but in early life removed to Iowa with his parents.
He graduated in medicine when about twenty, and, after de-
ciding to study law, ran the business of a druggist while doing
so in order to support a widowed mother. He was admitted
to the bar in 1852, became prosecuting attorney, and soon
enjoyed one of the largest law practices in the state. There-
after he held the office of district judge, the office of chief
justice of the Supreme Court of Iowa, and the office of federal
circuit judge. Later he went into practice in New York City,
became general counsel for the Union Pacific and for the
Western Union, for three years was professor of law in
Columbia University, and was honored with the presidency
of the American Bar Association. He was the author of
Dillon on Municipal Corporations , a legal classic, and founded
and edited the Central Law Journal. At the time he lived
there were not in the United States over three jurists his
peers.

Mitchell (1832-1900). 88 William Mitchell was born in
Ontario; was educated at Jefferson College, Pa.; moved to
Winona, Minn., and began the practice of law there in 1857;
was a member of the state legislature one term; became dis-
trict judge in 1874; and began his judicial career as a justice
of the Minnesota Supreme Court in 1881, an office which he
held until shortly before his death. He was a Democrat, and
was continued in office by the sufferance of the Republicans,

86 Mich. L. Rev. 309.

87 23 Green Bag 447 ; 25 Am. L. Rev. 969 ; 45 Am. L. Rev. 588.

88 4 Green Bag 171 ; 4 Minn. L. Rev. 377.

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who recognizing his outstanding ability either also nominated
him or put no opposition candidate in the held, until his last
campaign, when for political purposes they placed another
candidate in the held against him, and the party-trained and
political-minded voters voted Justice Mitchell out of office.
The late Dean Ames declared that this was a national
calamity. William Mitchell’s record upon the Minnesota
supreme bench entitles him to rank with the best of our state
judges.

Cardozo (1870-).89 Perhaps the greatest living state judge
is Benjamin Cardozo. He was born in New York City; pro-
cured the degrees of B.A. and M.A. from Columbia Univer-
sity; was admitted to the bar in 1891, and has been a judge
of the Court of Appeals of New York since 1914. He is
the author of the Nature of the Judicial Process, Growth
of Law, and Jurisdiction of the New York Court of Appeals,
and is active in the work of the American Law Institute.

Practitioners. Of the great lawyers, whose legal reputation
rests upon their work as practitioners at the bar instead of
upon work as professors of law or upon work upon the bench,
the following at least are entitled to mention:

Hamilton (1757-1804). 90 Alexander Hamilton was born on
the island of Nevis in the West Indies, a natural son of James
Hamilton, a Scotchman, and Rachael Levine, who had
separated from her husband, a Dane. His mother’s relatives
sent him to New York to be educated in 1772. He championed
the cause of the colonies when eighteen years old, wrote
masterly arguments in refutation of other publications, and
was lieutenant-colonel to General Washington. He married
a daughter of Philip Schuyler; practiced law in New York;
was a member of the Continental Congress, the Annapolis
Convention, and the Constitutional Convention; was joint
author of the Federalist with Madison and Jay; was a member
of Congress for one term, and was secretary of the treasury
from 1789 to 1795. He was responsible for the funding of
the public debt, the federal assumption of the state debts,
and the national bank. In 1795 he declined an appointment
as chief justice. He argued the carriage tax case91 before
the Supreme Court, and in his argument for a national bank

89 26 Green Bag 97.

90 23 Case and Com. 114.

91 Hylton v. United States, 3 Dallas 171.

Willis: Anglo-American Law

175

was the author of the doctrine of “implied powers”. Burr’s
final quarrel with him won over his support of Jefferson.
His death at the hands of Burr was chiefly responsible for
the abolition of the practice of dueling. He was a leader of
leaders, not of the rank and file, and only Marshall had more
to do than he with the foundations of our federal govern-
ment. For sheer intellectual power probably he was never
surpassed by any other lawyer in the United States.

Pinckney (1784-1822). 92 William Pinckney was one of the
great orator lawyers of the age of Wirt, Martin, Hopkinson,
Clay, and Webster. He was born at Annapolis, Md. and was
the son of a Tory, but he sided with the patriots and was
a member of the convention which ratified the Constitution.
Before practicing law he tried medicine. One after another
he held the offices of state attorney-general, United States
minister to England, United States minister to Russia, senator,
and United States attorney-general (under Madison) . He
fought in the battle of Blandenburg and was wounded in 1814.
He argued many cases before the United States Supreme
Court, and was largely responsible for the development of
international law and admiralty law in the United States.
He appeared in the Dartmouth College Case (tho late),93
McCullough v. Maryland ,94 Cohens v. Virginia,95 and Amiabele
Isabella 96 In 1816 he offered to let Story take over his
practice in Baltimore when it was paying him $21,000 a year,
but Story decided to remain on the bench, tho his salary at
the time was only $3,500. He was at that time the head of
the bar of the United States. He was foppish, vehement,
but absolutely overwhelming. He had few, if any, equals,
either in argument or eloquence, especially when he was talk-
ing before an audience made up partly of ladies.

Clay (1777-1852). 97 Henry Clay was another great orator,
but he is better known as a statesman than a lawyer. He
is noted for his arguments for protection, for his support
of the Missouri Compromise of 1820 and his authorship of the
Compromise of 1850, and for his candidacy for the presi-
dency. However, he was also a great lawyer, argued many

92 15 Green Bag 301 ; 23 Case and Com. 87.

93 4 Wheat. 518.

94 4 Wheat. 316.

95 6 Wheat. 264.

96 6 Wheat. 1.

97 37 Am. L. Rev. 1.

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important cases before the Supreme Court,98 and declined
an appointment by Adams as justice of the Supreme Court.
He was the son of a Baptist clergyman and was born in the
Slashes, Hanover County, Va. In succession he was clerk in
the High Court of Chancery of Richmond, practitioner at
Lexington, Ky., in the Kentucky constitutional convention and
the lower house of Kentucky, congressman, secretary of state
under Adams, and United States senator (1831-1842, 1849-
1852). He defended Aaron Burr, prevented the overthrow
of the common law in Kentucky, tried to prohibit slavery in
Kentucky, and was one of the negotiators of the Treaty of
Ghent. m

Webster (1782-1852).99 Daniel Webster has the reputation
of being the greatest orator the United States has produced.
He was perhaps one of the two greatest constitutional
lawyers of the United States, and many of the arguments used
by Marshall were first made by Webster. He was born in
Salisbury, now Franklin, N.H., ; graduated from Dartmouth
in 1801 ; was admitted to the bar in 1805 ; practiced law in
Boscawen till his father’s death and then in Portsmouth,
and achieved distinction; represented New Hampshire in Con-
gress from 1812 to 1817 ; in 1817 removed to Boston and
entered upon the largest practice in the United States ; repre-
sented Massachusetts in Congress from 1822 to 1826 and in
the Senate from 1827 to 1841 ; was secretary of state in 1841
(Harrison), but after negotiating the Ashburton Treaty re-
turned to practice; and was again in the Senate from 1845
to 1850. In the Dartmouth College Case100 he argued that
a charter is a contract and that the “law of the land” does
not mean any law the legislature may pass. In McCullough
v. Maryland 100 he argued that the power to tax is the power
to destroy. In Gibbons v. Ogden 100 he argued that the Union
is a federation and not a league. In the Girard Will Case101
he argued that a will against Christianity is void. In the
Passenger Tax Case 102 he argued that the states have no
power to impose a tax upon foreigners entering the United

98 Osborne v. United States Bank , 9 Wheat. 738 ; Greene v. Biddle, 8 Wheat. 1 ;
Briscoe v. Bank of Ky., 11 Pet. 257 ; Houston v. Bank, 6 How. 486.

99 13 Green Bag 508 ; 23 Case and Com. 97 ; 35 Am. L. Rev. 801 ; 13 Yale L. Jour.

366.

100 supra.

101 3 Wall. Jr. 263.

10S Smith v. Turner, 7 How. 283.

Wilhs: Anglo-American Law

177

States. In Congress he at first opposed, then supported the
tariff laws, and New England sold her ships and went to
manufacturing. He supported the Compromise of 1850. He
ought to have been appointed to the Supreme Court. That
would have been an appropriate way for him to round out
his career, and he was the one man in the United States who
was the appropriate successor to John Marshall, but a democ-
racy has yet to learn how to choose its greatest men for
positions of leadership.

Lincoln (1809-1865). 103 Abraham Lincoln is universally
ranked as one of our few greatest orators, statesmen, and
presidents. He is also entitled to be ranked among our great-
est lawyers. This, not so much for the big cases in which he
appeared, altho he appeared in some big cases, or for the
extent of his practice, altho he had an extensive practice
(since neither gave him a national reputation), as for the
uniqueness of his legal career, and for his legal and constitu-
tional arguments in his debates with Douglas, his Cooper
Union speech, and his inaugural addresses. The uniqueness
of his legal career appears first in his preparation of him-
self for the practice of the law by self-instruction in both
general education and legal education, an example which
has been an inspiration for all poor but ambitious young men
since his time ; second, in the moral and intellectual standards
which he maintained in the conduct of cases, which have had
no small influence in raising the moral and intellectual stand-
ards of the entire legal profession in the United States; and,
third, in his demonstration that the principles of Christianity
have more relation to the administration of justice and the
other problems of organized social life than they do to the
complicated statements of Christian doctrine which char-
acterize the articles of belief and confessions of faith of the
churches. He was born in Kentucky; lived in young man-
hood in southern Indiana and for the rest of his life in central
Illinois except when in Washington; was storekeeper, post-
master, deputy surveyor, captain in the Black Hawk War,
member of the Illinois legislature, congressman, leading-
practitioner in Illinois, and sixteenth president of the United
States; and was the author of the Gettysburg Address, the
Emancipation Proclamation, and other orations and immortal

103 23 Green Bag 325 ; 50 Am. L. Rev. 781 ; Nicolai and Hay’s Life of Lincoln, etc.

12—36004

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documents. We have had few trial lawyers in the United
States who were his equal, but he was never given a national
opportunity either before juries or before courts. Yet his
work in Illinois and his arguments in other than lawsuits
demonstrates that he was in ability one of the greatest law-
yers of the United States, and that if he had had the same op-
portunity he would have made a record equal to that of
Webster or Marshall. Except for some further study in
middle life, his general education was obtained from reading
the Bible, Aesop's Fables, Robinson Crusoe, Pilgrim's Prog-
ress, Shakespeare, Weem’s Life of Washington, and a history
of the United States, and his legal education from reading
Blackstone’s Commentaries.

There have been many other great practitioners, judges,
and law teachers and writers in the United States, but the
limits of this treatise forbid any more than a mere mention
of their names. Among those who must be thus recognized
at least are Patrick Henry (1786-1799), noted for his
eloquence and his “liberty or death” speech; William Wirt
(1772-1834), celebrated for his speech in the prosecution of
Aaron Burr; Joseph Hopkinson (1770-1842) of Pennsylvania
and Luther Martin (1744-1826) of Maryland, both of whom
could hold their own with any of the great lawyers of their
day; Rufus Choate (1799-1859) of Massachusetts, William M.
Evarts (1818-1901) of New York, Jeremiah S. Black (1810-
1888) of Pennsylvania, and Joseph H. Choate (1832-1917) of
New York and a cousin of Rufus Choate, all leaders of the
bar of the United States in their day; Elihu Root (1845-),
the head of the bar of the United States today and an advocate
of the reform of legal procedure; Charles Doe (1830-1896),
a great judge of New Hampshire who is noted for what he
did for legal procedure in that state; Isaac P. Christiancy
(1812-1890) and James V. Campbell (1823-1890), two judges
associated with Judge Cooley and almost his equal; John B.
Winslow (1851-1920), a great judge of Wisconsin; Learned
Hand (1872-) of New York, probably the greatest federal
district judge of the present time; David Dudley Field (1805-
1894), a lawyer of wide reputation and author of the New
York codes of civil and criminal procedure of 1848-1850, the
Field penal, civil, and political codes of 1857-1865, and a draft
outline of an international code (1873) ; Stephen Field (1816-

Willis: Anglo-American Law

179

1899), a brother of David Dudley Field and Cyrus Field and
largely responsible for the extension of the meaning of the
“due process clause” of the fourteenth amendment; Chris-
topher C. Landed (1826-1906), author of the Landed, or case,
method of instruction; James Barr Ames (1846-1910), the
greatest legal research man of the United States; John H.
Wigmore (1863-), an eminent law writer and author of Wig-
more on Evidence; Roscoe Pound (1870-), probably the great-
est jurist and legal philosopher of the United States; and John
Bassett Moore (I860-), an authority on international arbitra-
tion and a member of the World Court.

PART FOUR

LAW BOOKS AND THEIR USE

(181)

CHAPTER XVII
LAW BOOKS

The Anglo-American law of the past and the materials out
of which, along with the facts of life, the Anglo-American
law of the future will be made are found in law books. These
books may, therefore, be called the repositories of the law. In
the matter of authority the materials in these repositories
of the law vary in importance. Some are of almost controlling
importance. Others are only of persuasive importance. Still
others are of importance only as helps for finding the other
materials. Consequently it has become customary to classify
law books according to their authority, and this gives us three
main classes of law books: (I) Books of Primary Authority,
(II) Books of Secondary Authority, and (III) Key Books.
Books of primary authority include (A) Statutes, and ( B )
Judicial Decisions; and Statutes include (1) Constitutions,
(2) Treaties, and (3) Statutes proper. Books of secondary
authority include (A) Digests, ( B ) Encyclopedias, (C) Text-
books, (D) Law Dictionaries, ( E ) Legal Periodicals, and ( F )
Annotations to Statutes and Cases. Key Books include (A)
Indexes, (B) Notes on Reported Cases, ( C ) Tables of Cases,
and (D) Citators. Various lists104 of law books have been
compiled and published — all essentially alike, but the list pre-
pared by Edmund M. Morgan is best adapted for student
use, because it is accompanied by a large but succinct amount
of explanatory material, and this list with Professor Morgan’s
accompanying explanations and with a supplementary list of
state reports is the one now published in this study.

104 Hicks, Materials and Methods of Legal Research ; Lawyer’s Cooperative Pub. Co.,
Laiv Books and their Use; Mason in Brief Making; Kiser, Principles and Practice of
Legal Research; Morgan, Introduction to the Study of Lata.

083)

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REPOSITORIES OF THE LAW105
By Edmund M. Morgan106
Books of Primary Authority
A. Statutes in the United States.

1. Constitutions.

a. Constitution of the United States. Usually published in

compilations of federal statutes, and frequently in compila-
tions of state statutes. For example:

United States Revised Statutes (2d ed.), pp. 17-32.

U.S. Compiled Statutes, Vol. 10, p. 13062, Vol. 11 (Annotated) .
Federal Statutes Annotated, Vols. 10, 11 (Annotated).

Barnes, Federal Code, pp. 23-38.

General Statutes of Connecticut, Revision of 1918, pp. 23-40.
Ohio General Code revised to 1921, Throckmorton, pp. v-xii.

b. Constitutions of the several states. Usually the constitution

of a state is published in the compilation of the statutes of
that state. For example:

General Statutes of Connecticut, Revision of 1918, pp. 41-67.

2. Treaties.

Treaties of the United States with foreign nations and with the
Indian tribes are contained in the U.S. Statutes at Large. They are
also contained in the U.S. Treaty Series published by the Government
Printing Office. The treaties to 1913 are to be found in the collection
of William T. Malloy, issued in 1910 by the Government Printing Office,
and the supplement thereto by Charles Garfield, issued in 1913.

3. Federal Statutes.

a. United States Statutes at Large. These contain all acts of

Congress arranged chronologically, treaties, concurrent res-
olutions, and proclamations of the President, as originally
enacted or promulgated. At the close of each session of
Congress the above-mentioned documents of that session are
published by the Government.

b. Revised Statutes of the United States. The first edition

contains all acts of Congress of a general and permanent
nature in force December 1, 1873. The second edition was
published in 1878, and until 1901 was kept up to date by
supplements issued periodically.

c. Compiled Statutes of the United States. The 12 volumes

originally issued contain all acts of Congress of a general
and permanent nature in force January 1, 1915. A two-
volume supplement brings the work down to March 4, 1919.
These 12 volumes contain also extensive annotations to the
statutes, which, of course, fall without the class of material
characteristic of books of primary authority. A so-called
“Compact Edition” contains in one volume the statutory

i°5 Published by permission of Professor Morgan,
loa Professor of law, Harvard University.

WUUs: Anglo-American Law

185

text found in the original 12 volumes, without annotations,
and it has been brought to January 1, 1923, by a one-
volume supplement. Supplements keeping the material up
to date are published in the Federal Reporter.

d. Federal Statutes Annotated. The second edition contains in

12 volumes all the acts of Congress of a general and perma-
nent nature in force on January 1, 1916. Five annual
supplements bring the work to January 1, 1923. Quar-
terly pamphlet supplements keep the text up to date. All
these publications contain by way of annotations much
material characteristic of books of secondary authority.

e. Barnes Federal Code. This contains the acts of Congress

of a general and permanent nature in force December 31,

1918, classified and arranged as in the Revised Statutes
of the United States. A one-volume supplement brings it
down fo January, 1923.

4. Statutes of the several states.

a. Session Laws. After the close of each legislative session in

any state, the enactments of the legislature during that
session, arranged chronologically, are published by the state
or under its authority. They are commonly called session
laws, but in some states they are otherwise designated.
For example, in Connecticut they are usually referred to
as Public Acts, in Florida as General Acts, in Wisconsin
as Session Laws.

b. Compilations, Consolidations, Revisions, Codes. At intervals

in each state, the legislature provides for the rearrange-
ment or restatement or both of all existing statutory enact-
ments. In some instances the provision is merely for re-
publishing the statutes in chronological order omitting re-
pealed and obsolete enactments; in others it is for re-
publication with arrangement according to subject-matter;
in others for a rewriting and restating of the existing laws
with needed amendments. In the last case the restatement
is enacted by the legislature. In the others, the legis-
lature usually merely authorizes the rearrangement of
statutes then in force without alteration or amendment and
makes the new publication only prima facie evidence of
the law, as it exists in the previously enacted statutes. An
example of the former is found in the Revised Laws of
Minnesota, 1905; of the latter in the General Statutes of
Minnesota, 1913. In some instances the restatement or
revision of only a portion of the statutory law is provided
for, as in the case of the New York Civil Practice Act,

1919.

5. Municipal Charters.

Frequently, and formerly always, these were merely acts of the
legislature. Often they are now so-called Home Rule Charters, adopted
by vote of the electors of the municipality.

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6. Municipal Ordinances.

Ordinances passed by the legislative body of a municipality pur-
suant to valid authority given by its charter have the same effect within
the municipality as do enactments of the state legislature within the
state.

7. Regulations and Orders of Administrative Commissions and

Officers.

These, when made pursuant to properly delegated authority, have
substantially the effect of statutes, e.g., Regulations and Orders of the
State Board of Health of Minnesota.

8. Rules of Court.

For the conduct of litigation in the various courts, rules are pro-
mulgated by them which, within their proper sphere, have the force of
an enactment of the legislature. They are usually published as an
appendix to reports of decisions, and ordinarily they can be obtained
in pamphlet form from the clerks of the respective courts.

B. Statutes in England.

1. Constitutions — None.

2. Treaties.

The treaties of Great Britain with other nations from 1829 to
date are published in British and Foreign State Papers (112 volumes to
1922) and the treaties from 1892 to date in the Treaty Series.

3. Statutes.

a. The Statutes Revised. The second edition in 20 volumes con-

tains in chronological order the live statutes from 1235
to 1900. An official publication.

b. Public General Statutes. These contain the statutes from

1901 to date. There is an official edition, and an unofficial
Law Reports edition.

c. Chitty’s Statutes of Public Utility. The first 16 volumes con-

tain the statutes which the unofficial publishers deem of
general importance through 1910; the 17th and 18th
volumes, through 1916; and annual supplements, to date.

4. Statutory Rules and Orders.

These contain in 13 volumes the statutory rules and orders of gen-
eral and permanent importance in effect December 31, 1903. Annual
volumes bring and keep the work up to date.

5. Rules of Court.

C. Reports of Judicial Decisions in the United States.

1. Reports of Decisions of Federal Courts.

a. United States Supreme Court Reports.

1789-1900, Dallas, 4 volumes.

1801-1815, Cranch, 9 volumes.

1816-1827, Wheaton, 12 volumes.

1828-1842, Peters, 16 volumes.

1843-1860, Howard, 24 volumes.

1861-1862, Black, 2 volumes.

Wilhs: Anglo-American Law

187

1863-1874, Wallace, 23 volumes.

1875 to date, United States Supreme Court Reports begin-
ning with Volume 91. The volume issued October, 1923,
is number 259.

Dallas and Cranch were unofficial reporters. Wheaton in 1817
was appointed official reporter, and since that date the decisions of the
court have been reported by an official reporter. The reports from
1789 to 1874 inclusive are cited as volumes 1 to 90 United States
Supreme Court Reports as well as by the name of the reporter. The
reports since 1875 are not cited by the name of the reporters.

b. United States Supreme Court Reporter. This is an unoffi-

cial publication reporting the decisions of the United States
Supreme Court beginning with those in volume 106. From
3 to 5 volumes of the official reports are contained in one
volume of the Reporter. Advance sheets report current
decisions.

c. United States Supreme Court Reports, Lawyer’s Edition.

The 66 volumes of this unofficial publication contain all
cases reported in the 259 volumes of the regular reports;
and semi-monthly advance sheets report the current deci-
sions. This publication contains much material properly
belonging to books of secondary authority, e.g., editorial
head-notes, summaries of briefs of counsel, editorial anno-
tations, tables of cases affirmed and reversed, etc.

d. Federal Cases. This is an unofficial reprint in 31 volumes

of all published decisions of the United States Circuit
Courts and of the United States District Courts from
1789 to 1879. It has almost entirely superseded the re-
ports from which it is reprinted. The cases are arranged
alphabetically and numbered consecutively. They are cited
by title and number, rather than by title, volume, and page.

e. Federal Reporter. This contains all the published decisions

of the United States Circuit Courts from 1880 to 1912,
when they were abolished, of the United States District
Courts from 1880 to date, and of the United States Circuit
Court of Appeals from its organization in 1891, and of the
Commerce Court.

/. Court of Claims Reports.

1855-1856, Devereux’s Reports.

1863 to date, Court of Claims Reports.

g. Court of Customs Appeals Reports. The publication of deci-

sions of this court began in 1910. Current decisions are
published in the weekly pamphlet of Treasury Decisions.

h. Reports of Decisions of Courts of District of Columbia, the

Territories, and Outlying Possessions of the United States.
See below under Reports of Decisions of Courts of the
Several States, etc.

2. Reports of Decisions of the Courts of the Several States, Terri-
tories, and Possessions of the United States.

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Indiana University Studies

a. So-called Official Reports. A complete list of the reports

of the courts of the several states and territories, the Dis-
trict of Columbia, Porto Rico, and the Philippine Islands
will be found in Hicks, pp. 559-571 ; in Law Books and Their
TJse, published by the Lawyers’ Cooperative Publishing- Co.,
and Bancroft- Whitney Co.107 * * * It is necessary only

to mention that some of the earlier reports in some juris-
dictions are by unofficial reporters, and are in such con-
densed or abbreviated form as to be of less value than
current reports. An acquaintance with the system of courts
in a jurisdiction is sometimes required in order to be able
to distinguish the reports of inferior and intermediate ap-
pellate courts from those of courts of last resort.

b. Unofficial Reports.

(1) The Reporter System. This system reports all current
decisions of all appellate courts of the United States, and
some decisions of lower courts. These reports are usually
published much in advance of the official reports. Weekly
advance sheets are issued. All opinions of the courts in
question are printed in full. The United States Supreme
Court Reporter and the Federal Reporter have been
noticed above. The other units of the system are shown
below. They report the decisions of the courts of the
jurisdictions named, beginning (unless otherwise stated)
with page 1 of the indicated volume of the so-called offi-
cial reports.

jo? The reports have been designated by number from the beginning in the states
and territories of Alaska, Arizona, Arkansas, California, Colorado, Dakota, Florida,
Hawaii, Idaho, Kansas, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico,
Oklahoma, Oregon, Philippine Islands, Porto Rico, Rhode Island, Utah, Washington,
West Virginia, and Wyoming. The following is a list of the other states with the
names of the reporters by which their earlier reports have been designated :

Alabama : Minor, Stewart, Stewart and Porter, Porter, Alabama Reports, Alabama
Appellate Court Reports.

Connecticut: Kirby, Root, Day, Connecticut Reports.

Delaware: Harrington, Houston, Marvel, Pennewill, Boyce, Houston’s Criminal Re-
ports, Delaware Chancery Reports, Harrington, W. W.

District of Columbia: Cranch (D.C. 1-5), Hayward and Hazelton, District of
Columbia Reports, (D.C, 6 and 7), McArthur (D.C. 8-10), McArthur and Mackey (D.C.
11), Mackey (D.C. 12-21), District of Columbia Appeals.

Georgia: Charlton (T. U. P.), Charlton (R. M.), Dudley, Georgia Decisions,
Georgia Reports, Georgia Appeals Reports.

Illinois: Breese (1 111.), Scammon (2-5 111.), Gilman (6-10 111.), Illinois Reports,
Illinois Appeals Reports, Illinois Circuit Court.

Indiana: Blackford, Wilson (Superior Court), Indiana Reports, Indiana Appellate
Reports.

Iowa : Morris, Greene, Iowa Reports.

Kentucky: Hughes, Kentucky Decisions (Sneed), Hardin, Bibb, Marshall (A. K.),
Littell, Littell’s Select Cases, Monroe (T. B.), Marshall (J. J.), Dana, Monroe (Ben.),
Metcalf, Duvall, Bush, Kentucky Reports (78 to 204).

Louisiana: Martin, Martin (New Series), Louisiana Reports, Robinson, Louisiana
Annual Reports, Louisiana Reports (104 to 156), Manning’s Unreported Cases, Mc-
Gloin’s Court of Appeals.

Wilhs: Anglo-American Law

189

(a) Atlantic Reporter (begins 1885).

Connecticut — Vol. 53.

Delaware (Chancery) — Vol. 6.

Houston, Vol. 7.

Marvel, Vol. 1.

Pennewill, Vol. 1.

Boyce, Vol. 1.

Maine— Vol. 77, p. 408.

Maryland — Vol. 64.

New Hampshire — Vol. 63, p. 446.

New Jersey (Law) — Vol. 47, p. 349.

(Equity) — Vol. 40, p. 345.

Pennsylvania — Vol. 110.

Rhode Island — Vol. 15.

Vermont — Vol. 58.

( b ) Northeastern Reporter (begins 1885).

Illinois (Supreme) — Vol. 114.

Indiana (Supreme) — Vol. 102.

(Appellate) — Vol. 1.

Massachusetts — Vol. 139.

New York— Vol. 99.

Ohio— Vol. 43.

(c) Northwestern Reporter (begins 1879).

Dakota — Vol. 1.

Iowa — Vol. 51.

Michigan — Vol. 41.

Minnesota — Vol. 26.

Nebraska — Vol. 8, p. 294.

Nebraska Commissioners’ Decisions, Vol. 1.

North Dakota — Vol. 1.

South Dakota — Vol. 1.

Wisconsin- — Vol. 46.

Maine: Greenleaf (Maine, 1-9), Fairfield (Maine, 10-12), Maine Reports (13 to
123).

Maryland, Law: Harris and McHenry, Harris and Johnson, Harris and Gill, Gill
and Johnson, Gill, Maryland Law Reports; Chancery: Bland’s Chancery Reports, Mary-
land Chancery Reports. This court abolished.

Massachusetts: Massachusetts Reports (1-17), Pickering, Metcalf, Cushing-, Gray,

Allen, Quincy’s Reports, Thatcher’s Criminal Cases, Cushing’s Contested Election Cases,
Massachusetts Reports.

Michigan: Harrington’s Chancery, Walker’s Chancery, Douglass, Brown’s Nisi

Prius, Howell’s Nisi Prius, Michigan Reports.

Mississippi, Law: Walker (Miss. 1), Howard (Miss. 2-8), Smedes and Marshall
(Miss. 9-22), Mississippi Reports (23 to 135) ; Chancery: Freeman’s Chancery, Smedes
and Marshall’s Chancery.

New Hampshire: Smith, New Hampshire Reports (N.H. 1-20), Foster (N.H.
21-31), New Hampshire Reports.

New Jersey, Law: Coxe, Pennington, Southard, Halsted, Green, Harrison, Spencer,
Zabriskie, Dutcher, Yroom, Gummere ; Chancery: Saxton, Green, Halsted, Stockton,
Beasley, McCarter, Green, C. E. Stewart, Dickinson, Robbins, Buchanan, Stockton. (The
volumes of the New Jersey Law and the New Jersey Equity Reports are designated
from the beginning by number and by the names of the court reporters.)

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Indiana University Studies

( d ) Pacific Reporter (begins 1883).

Arizona — Vol. 1.

California (Supreme) — Vol. 64.

(Appellate) — Vol. 1.

Colorado (Supreme) — Vol. 7.

(Appellate) — Vol. 1.

Idaho— Vol. 2.

Kansas (Supreme) — -Vol. 30.

(Appellate) — Vol. 1.

Montana — Vol. 4.

Nevada — Vol. 17.

New Mexico — Vol. 3.

Oklahoma (Supreme) — Vol. 1.

(Criminal Appeals) — Vol. 1.

Oregon — Vol. 11.

Utah— Vol. 3.

Washington — Vol. 1.

(Territory) — Vol. 2.

Wyoming — Vol. 3.

( e ) Southeastern Reporter (begins 1887).

Georgia — Vol. 79.

Georgia (Appellate) — Vol. 1.

North Carolina — Vol. 96.

South Carolina — Vol. 26.

Virginia — Vol. 82, p. 964.

West Virginia — Vol. 29.

(/) Southern Reporter (begins 1887).

Alabama — Vol. 81.

Alabama Appellate — Vol. 1.

Florida— Vol. 23.

Louisiana — Vol. 39 (Annotated).

Mississippi — Vol. 64.

New York, Law: Coleman’s Cases, Coleman and Caine’s Cases, Johnson’s Cases,
Caine, Caine’s Cases, Johnson, Anthon’s Nisi Prius Cases, Yates’ Select Cases, Cowen,
Wendell, Hill, Denio, Lalor’s Supplement to Hill and Denio, Edmond’s Select Cases,
Lockwood’s Reversed Cases (Reprint 80 volumes, annotated, with digest, in 17 books) ;
Chancery: Johnson, Hopkins, Paige, Edwards, Hoffman, Clarke, Sandford, Barbour
(Reprint 38 volumes including Chancery Sentinel, annotated, with digest, in 7 books) ;
Court of Appeals: Comstock, Selden, Kernan, New York Court of Appeals (A re-
print of the New York Court of Appeals Reports has been made.) Court of Ap-
peals: (containing Cases unreported in Regular Series), Howard’s Appeal Cases,

Keyes, Abbott, Selden’s Notes, Transcript Appeals, Silvernail ; Supreme Court Re-
ports: Barbour, Lansing, Thompson and Cook, Hun, Silvernail, Appellate Division;

Practice and Code Reports: Howard’s Practice, Howard’s Practice (N.S.), Code Re-
porter, Code Reports (N.S.), Abbott’s Practice, Abbott’s Practice (N.S.), Abbott’s New
Cases, New York City Court Reports, New York Civil Procedure, New York Civil
Procedure (N.S.), New York Miscellaneous, New York Annotated Cases; Surrogate
Court Reports : Bradford, Redfield, Tucker, Demarest, Connoly, Powers, Gibbons, Mills ;
Superior Court Reports: Hall, Sandford, Duer, Bosworth, Robertson, Sweeney, Jones
& Spencer, Buffalo Superior Court (Sheldon’s Reports) ; Common Pleas Reports: Smith
(E.D.), Hilton, Daly; Criminal Reports: Wheeler’s Criminal Cases, Rogers’ City Hall
Recorder, Parker’s Criminal, Cowen’s- Criminal. New York Criminal.

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191

(g) Southwestern Reporter (begins 1886).

Arkansas — Vol. 47.

Kentucky — Vol. 84, p. 202.

Indian Territory — Vol. 1.

Missouri (Supreme) — Vol. 89.

(Appellate) — Vol. 94 (also part of Vol. 93).
Tennessee — Vol. 85.

Texas — Vol. 66.

(Appellate) — Vol. 1.

(Civil Appeals) — Vol. 1.

(Criminal Reports) — Vol. 21.

( h ) New York Supplement (begins 1888).

This reports the decisions of the lower courts of New
York which are published in the following re-
porters and many not published in any of them.
Commencing with volume 184 it publishes also
decisions of the New York Court of Appeals.

Abbott — Vol. 23.

Appellate Division — Vol. 1.

Civil Procedure — Vol. 14.

Civil Procedure Reports, New Series — Vol. 1.

Bradbury’s Pleading and Practice Reports —

Vol. 1.

Demarest’s Surrogate — Vol. 6, p. 413.

Connoly’s Surrogate — Vol. 1.

Gibbons’ Surrogate — Vol. 1.

Power’s Surrogate — Vol. 1.

Mills’ Surrogate — Vol. 1.

Daly— Vol. 14, p. 497.

Hun— Vol. 48, p. 304.

Miscellaneous Reports — Vol. 1.

Criminal Reports — Vol. 6.

North Carolina: Martin, Taylor, Conference by Cameron and Norwood, Haywood,
Carolina Law Repository, North Carolina Term Reports, Murphey, Hawks, Devereux’s
Law, Devereux’s Equity, Devereux and Battle’s Law, Devereux and Battle’s Equity,
Iredell’s Law, Iredell’s Equity, Busbee’s Law, Busbee’s Equity, Jones’ Law, Jones’
Equity, Winston, Phillip’s Law, Phillip’s Equity, North Carolina Reports. (In June,
1906, the Supreme Court of North Carolina made a rule requiring counsel in future to
cite these reports by consecutive volume number.)

Ohio : Ohio Reports, Ohio State Reports, Ohio Appeals ; Miscellaneous Ohio Re-
ports: Tappan (Common Pleas), Wright (Supreme Court), Handy (Cincinnati Su-
perior Court), Disney (Cincinnati Superior Court), Cincinnati Superior Court, Ohio
Decisions Reprint, Ohio Decisions (Superior and Common Pleas), Ohio Nisi Prius, Ohio
Nisi Prius (New Series) , Ohio Circuit Decisions, Ohio Circuit Court Reports, Ohio
Circuit Court Reports (New Series).

Pennsylvania: Dallas, Addison, Yeates, Binney, Sergeant and Rawle, Rawle, Pen-
rose and Watts, Watts, Wharton, Watts and Sergeant, Pennsylvania State Reports ;
Miscellaneous Pennsylvania Reports : Ashmead, Brewster, Brightly, Browne, Clarke,
Grant’s Cases, Kulp, Miles, Monaghan, Parsons’ Equity Cases, Pearson, Pennypacker,
Sadler’s Pennsylvania Cases, Pennsylvania County Court Reports, Pennsylvania Dis-
trict Court Reports, Pennsylvania Superior Court Reports, Philadelphia Reports, Pitts-
burgh Reports, Walker Supreme Court Cases, Wilcox, Woodward’s Decisions.

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Indiana University Studies

Superior Court — Vol. 56.

Silvernail — Vol. 1.

Leading* Cases Annotated — Vol. 1.

3. Reports of Selected Decisions of Federal and State Courts

(General) .

These are series of cases believed by the editors and compilers to be
of general value and authority, dealing usually with questions which are
of more than local value, or which are novel, or upon which there is
a conflict of authority. The volumes in which they are published con-
tain, by way of annotation, much material of secondary authority. (See
below, Books of Secondary Authority F.)

a. The Trinity Series.

(1) American Decisions, 100 volumes (1760-1869).

(2) American Reports, 60 volumes (1870-1887).

(3) American State Reports, 140 volumes (1887-1917).

b. Lawyers’ Reports Annotated.

(1) L.R.A., First Series, 70 volumes (1888-1905).

(2) L.R.A., New Series, 52 volumes (1906-1914).

(3) L.R.A., Third Unit, 24 volumes (1915-1918).

c. American and English Annotated Cases, 21 volumes (1906-

1917). Cases from Canadian and British reports are in-
cluded.

d. American Annotated Cases, 32 volumes (1912-1918). This

series represents a consolidation, and is a continuation of
Lawyers’ Reports Annotated and American Annotated
Cases. Publication began in 1919; about 6 volumes per
year are issued.

e. American Law Reports Annotated. This series represents

a consolidation, and is a continuation of Lawyers’ Reports
Annotated and American Annotated Cases. Publication
began in 1919; about 6 volumes per year are issued.

4. Reports of Selected Decisions of Federal and State Courts upon

Special Subjects.

South Carolina, Law: Bay, Brevard, Treadway (included in Brevard’s Reports.
Vol. 3), Mill (Constitutional), Nott and McCord, McCord, Harper, Bailey, Hill, Riley,
Dudley, Rice, Cheves, McMullan, Spear, Strobhart, Richardson, South Carolina Reports,
New. Series; Chancery: Desaussure, Harper, McCord, Bailey, Richardson’s Cases, Hill,
Riley, Dudley, Rice, Cheves, McMullan, Spear, Richardson, Strobhart, Richardson.

Tennessee, Law: Overton, Cooke, Haywood, Peck, Martin and Yerger, Yerger,
Meigs, Humphreys, Swan, Sneed, Head, Coldwell, Heiskell, Baxter, Lea, Pickle, Ten-
nessee Reports, Tennessee Civil Appeals, Tennessee Circuit Court ; Chancery : Ten-
nessee Chancery Reports (Cooper), Tennessee Chancery Appeals Reports.

Texas: Dallam’s Decisions, Texas Supreme Court Reports, Texas Appeal Reports,
Texas Criminal Appeals Reports (31 to 97), Texas Civil Appeal Reports, Texas Un-
reported Cases (Posey), Vol. 25 Supp. Tex. Sup. Ct. Rep., Texas Civil Appeals Cases.

Vermont: Chipman (N.), Chipman (D.), Tyler, Brayton, Aiken, Vermont Reports.

Virginia: Jefferson, Wythe’s Chancery Reports, Washington, Virginia Criminal

Cases, Call, Hening and Munford, Munford, Gilmer, Randolph, Leigh, Robinson, Grat-
tan. Virginia Reports. (In June, 1912, the Virginia Supreme Court of Appeals made
a rule requiring counsel to cite the above listed reports by consecutive number of
volume as well as by the Reporter’s name.) Special Virginia Reports: Patton, Jr.
and Heath, Court of Appeals, Howison, Criminal Trials, Virginia Decisions. — H. E. W.

Willis: Anglo-American Law

193

a. American Bankruptcy Reports. Contains bankruptcy cases in
Federal and State Courts, 49 volumes (1899-1923).
h. American Bankruptcy Reports, New Series, 1923 to date.

c. American Criminal Reports, 15 volumes (1877-1909). Con-

tains selected criminal cases from American, English,
Scotch, Irish, and Canadian law reports.

d. Negligence and Compensation Cases. Contains selected cases

dealing with negligence, employer’s liability, and workmen’s
compensation decided by American, English, and Canadian
courts from 1912 to date. This series is a continuation of
American Negligence Reports, 21 volumes (1896-1910),
which in turn was a continuation of American Negligence
Cases, 17 volumes (1789-1896).

e. Public Utility Reports Annotated. Contains what the editors

deem important decisions and orders of commissions and
courts concerning regulation of public utilities from 1915
to date. Advance sheets are issued bi-weekly.

/. For a list of other series of selected cases (which have been
discontinued), see Hicks, Materials and Methods of Legal
Research (1923), page 559.

D. Reports of Judicial Decisions in England.

1. Prior to the Year Books.

a. Bigelow, Placita Anglo-Normanica. Containing miscellaneous

cases from William I to Richard I (1066-1195), collected by
Melville M. Bigelow from various historical documents and
published in 1879.

b. Plea Rolls. Our earliest known plea rolls date from 1194.

The plea roll of a term contained a record of each case
tried at the term, giving “the names of the parties to the
(an) action, the nature of the action, the plaintiff’s state-
ment of his case, the defendant’s defence, and the pleas
upon which both parties finally rested their case, the issue
left to a jury, if an issue were left to one, the verdict of
that jury if one were ever delivered, and the judgment of
the Court upon that verdict.”108 All these rolls in the Curia
Regis thru 1201 have now been made accessible in the
following:

(1) Palgrave, Rotuli Curiae Regis (1194-1199), pub-
lished in 1835.

(2) Maitland, Three Rolls in King’s Court (1194-1195),
published in 1891.

(3) Curia Regis Rolls, published by the British Govern-
ment in 1923.

Cases from other rolls are available in:109

(1) Baildon, Select Civil Pleas, 1889 (1200-1203).

(2) Maitland, Select Pleas of the Crown, 1888 (1200-
1225).

10S Bolland, The Year Books 27, 28 (1921).

109 The date immediately following the title is the year of publication ; the date
in parenthesis indicates the period covered by the cases.

13—36004

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Indiana University Studies

(3) Healey, Somerset Pleas, 1897 (1200-1257).

(4) Clay, Three Yorkshire Assize Rolles, 1911 (1202-
1208).

(5) Maitland, Gloucester Pleas of the Crown, 1884

(1221).

(6) Watson, Bristol Pleas of the Crown, 1902 (1221).

(7) Parker, Calendar of Lancashire Assize Rolls, 1904-
1905 (1241-1285).

(8) Page, Three Northumberland Assize Rolls, 1891
(1256-1279).

(9) Bracton’s Note Book, 1887 (1218-1240).

(10) Phillimore, Pleas of the Court of King’s Bench,
1898 (1297).

And excerpts from rolls from the reigns of Richard I to

Edward III are found in a compilation made during the

reign of Elizabeth and known as
Abbreviate Placitorum (1189-1327).

Records of some early state trials with reports of testi-
mony, etc., are published in

(1) Cobbett and Howell, State Trials, 1809-1828 (1163-
1820).

(2) Tout and Johnstone, State Trials of Edward I, 1906
(1289-1293).

2. The Year Books.

“So far as we know the earliest Year Book now in existence is one
of the eighteenth year of Edward I, 1289-1290. From that time on-
wards until 27 Henry VIII, 1535, we have a fairly perfect succession
of them. There are a few terms of Edward I’s reign missing; and in
the reigns of Henry VII and VIII there are intermissions. They stop
finally, as I have just said, in 1535, when their place was taken by
printed reports made by counsel who published them in their own
names.”110

Between 1866 and 1879 the British Records Office produced in five
volumes the Year Books for 20 to 35 Edward I (1292-1307) edited by
Mr. A. J. Horwood in a most scholarly fashion, and between 1883 and
1911 the Year Books for 11 to 20 Edward III (1337-1346) in 15 volumes,
the first volume edited by Mr. Horwood and Mr. Luke Owen Pike, the
others by Mr. Pike, who even improved upon Horwood’s work. The
Year Book for 12 Richard II (1289-1290) was published in 1914 by
Harvard University Press and under the Ames Foundation. The
Selden Society, between 1903 and 1922, published fifteen volumes
of Year Books of the early years of Edward II (1307-1314) ably
edited by Maitland, Turner, Harcourt, Bolland, Vinogradoff, and Ehr-
lich. It is still engaged in its plan to publish at least the remaining
years of that reign. The result is that there are at present in print
the following series of Year Books:

The Black Letter Edition (1307-1537) (unsatisfactory).

Rolls Series, Horwood (1292-1307).

110 Holland, The Year Books, 8.

Willis: Anglo-American Law

195

Rolls Series, Horwood and Pike (1337-1346).

Selden Society (1307-1314).

3. From the Year Books to the Law Reports.

From the beginning of the sixteenth century there has been no
lack of law reports in England, but not all reports have been of equal
worth; indeed they vary in merit from excellent to worthless. . . .

A full list of English reporters may be found in Hicks,111 pp. 535-547,
in Cooley, Brief Making and the Use of Law Books, 51-59, and in
numerous other places, so that they will not be set down here.’ Suffice
it to say that it seems to be generally agreed that of the earlier common
law reports the following are of excellent authority: Dyer, Plowden,
Coke, Parts 1-11, Croke, Yelverton, Hobart, and Saunders; the follow-
ing very good: Moore, Willes, Foster, and Wilson; the following good:
Anderson, Leonard, Davies, Rolle, 0. Bridgeman, Sir T. Jones, Lord
Raymond, Parker; the following from poor to worthless: Noy, Coke,
Parts 12, 13, Godbolt, Gouldsborough, Popham, Lane, Ley, Hutton, J.
Bridgeman, Latch, Hetley, Aleyn, Siderfin, Keble. Modern excepting
volumes 2, 6, and 12, Comerbach, Salkeld, volume 3, Gilbert, Cases in
Law and Equity, Fitzgibbon, W. Kelynge, Sayre. From Burrow on,
most of the reports, except Lot, the eighth volume of Taunton, and
Anstruther, have been of good repute. Most of the early Chancery
reports are poor; not till Peere Williams (1695-1736) is there a clear
and accurate reporter. Cox’s reports (1783-1796) are the next worthy
of much commendation; thereafter the chancery reports are generally
satisfactory, ranging from fair to excellent.

4. The Law Reports.

Since 1865 the Law Reports have been published by the Incorporated
Council of Law Reporting, a private institution, not under government
control. The reporters are employed and paid by this corporation but
are appointed with the approval of the judges; and their reports are not
published until after approval or revision by the judges. From 1866 to
1875 the reports were issued in three series as follows:

a. Appellate, consisting of English and Irish Appeal cases be-

fore the House of Lords, Scotch and Divorce Appeals be-
fore the House of Lords, and Privy Council Appeal Cases.

b. Chancery, consisting of Chancery Appeal Cases, including

Bankruptcy and Lunacy, and Equity Cases before the
Master of the Rolls and before the Vice-Chancellors.

c. Common Law, consisting of Admiralty and Ecclesiastical

Cases, Common Pleas Cases, Exchequer Cases, Queen’s
Bench Cases, and Probate and Divorce Cases. With each
section were reported Cases on Appeal from the court in
question; thus, in Queen’s Bench Cases were included cases
in the Exchequer Chamber on Appeal from the Court of
Queen’s Bench.

These three series with their subdivisions made ten sets of re-
ports. By the acts of 1873 and 1875 the Supreme Court of Judicature

Hicks, Materials and Methods of Legal Research.

196

Indiana University Studies

was established, consisting of the Court of Appeal and the High Court
of Justice with its five subdivisions, namely, Queen’s Bench Division,
Common Pleas Division, Exchequer Division, Chancery Division, and
Probate, Divorce, and Admiralty Division. The ten sets were reduced
in 1875 to six: (1) Appeal Cases, comprising all in the former Appel-
late Series; (2) Queen’s Bench Division; (3) Common Pleas Division;
(4) Exchequer Division; (5) Chancery Division, and (6) Probate Divi-
sion. Each of these last five reported not only the cases of original
jurisdiction in the particular division, but also the decisions of the
Court of Appeal on Appeals from that division. Since 1880, when the
Common Pleas Division and the Exchequer Division were merged in the
Queen’s Bench Division, but four sets of reports have been published,
namely, Appeal Cases, Queen’s or King’s Bench Division, Chancery
Division, and Probate Division.

Before 1865 the English reports are cited by the name of the re-
porter; from 1865 to 1890 they are cited as Law Reports followed by
the number of the volume and the name of the court, usually abbreviated
thus: L.R. 5 Q.B. or L.R. 5 Q.B.D. The Appeal Cases in the House of
Lords and Privy Council, however, are cited merely by volume number
followed by Appeal Cases, abbreviated App. Cas. From 1891 the re-
ports are cited by giving the year of publication, the number of the
volume of that year, and the abbreviation of the name of the court, thus :
L. R. 1923, 2 K.B. and 1923 App. Cas.

5. English Reprints.

a. English Reports, Full Reprint. This reprints verbatim all

the English reports, except the Year Books, prior to 1865.

b. The Revised Reports. This reprints all cases of common law

and equity deemed to be of present value from 1785 to 1865.

c. English Common Law Reports. An American reprint of

cases in King’s Bench and Queen’s Bench from 1813 to 1872.

ci. English Chancery Reports. An American reprint of cases
decided 1843 to 1874.

e. Moak’s English Cases. Contains in 38 volumes English Cases
decided between 1872 and 1889, with notes.

/. There are several other American reprints of portions of
English reports, but they are not of importance.

6. Collateral Reports.

a. During the period before 1865, reports which had the super-

vision of the court were called authorized; all others were
referred to as collateral. No attempt is made here to men-
tion them. They will be found listed in Hicks, 535-547.

b. Law Times Reports. The Law Times since 1843 has cur-

rently reported cases from all courts.

c. The Times Law Reports. These reports since 1885 have

published current cases from all courts.

d. Weekly Notes. This is a publication of the Incorporated

Council of Law Reporting, which since 1866 has given
advance reports of cases later published in the Law Reports.

Willis: Anglo-American Law

197

7. Reports of Selected Decisions of English Courts.

a. Bankruptcy and Company Winding Up Cases, begun in 1915

and succeeding Manson’s Bankruptcy and Companies Cases
which began in 1894 and ended in 1914.

b . Cox’s Criminal Law Cases, begun in 1843.

c. Cohen’s Criminal Appeal Reports, begun in 1908.

d. Butterworth’s Workmen’s Compensation Cases, begun in 1915

and succeeding Minton-Senhouse’s Workmen’s Compensa-
tion Cases.

e. Reports of Cases under the Workmen’s Compensation Act,

and on Insurance Law.

/. There are other collections of reports of special cases, a few
still current, but most of them have ceased publication.

g. Smith’s Leading Cases. Selected from all topics in the law

and annotated. The ninth American edition was published
in 1889.

h. English Ruling Cases. In 26 volumes are collected English

cases prior to 1900 deemed by the editors to be leading
cases. They are arranged topically and annotated with
English and American notes.

i. British Ruling Cases. This is a current series of annotated

cases from 1900 to date, containing cases which its editors
believe to be of general interest and importance from Eng-
land, Ireland, Scotland, Canada, Australia, and New
Zealand.

E. Reports of Judicial Decisions of Other Parts of British Empire.

1. A list of reports of the Courts of Ireland, Scotland, and Canada

and Canadian Provinces will be found in Hicks, 547-555.

2. Reports of Australian Courts.

cv. Commonwealth Law Reports reporting decisions of the High
Court of Australia.

6. Each of the following states has reports bearing the name
of the state, in much the same manner as the states of the
United States, namely, New South Wales, Victoria,
Queensland, South Australia, West Australia, Tasmania.

3. Reports of New Zealand Courts.

a. These decisions are reported in New Zealand Law Reports.

Books of Secondary Authority

A. Digests. A digest of a volume of reports or of a set of reports
is an elaborate index to that volume or set.

1. American Digests, General.

Until about the middle of the nineteenth century there were no
respectable digests of American case law as a whole. Dane’s Abridg-
ment, published in 1823-1824, was a hybrid of digest and commentary
confined for the most part to the law of the Federal Courts and of
Massachusetts. In 1848 the United States Digest began publication and
continued till 1871, digesting decisions from 1847 to 1869. In 1874-

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Indiana University Studies

1876 Abbott’s United States Digest of Cases from 1790 to 1869 in 14
volumes was published. This was followed by United States Digest,
New Series, brought out annually, till merged in the American Digest
in 1887. The Complete Digest which began in 1887 was combined with
the American in 1890; and the General Digest which commenced in 1890
continued publication till 1907. Since that date the American Digest
System has been without competition. It now consists of:

a. Century Digest, classifying and abstracting decisions of

appellate courts from 1658 to 1896.

b. First Decennial, 1896-1906.

c. Second Decennial, 1907-1916.

d. American Digest, Key Number Series, 1917 to date.

e. American Monthly Digest. . . .

2. American Digests, Special.

a. In almost every state there exists a digest of the reports

of that state, sometimes called by the name of the
state, as the California Digest; sometimes called by
the name of the compiler, as Dunnell’s Digest (Minne-
sota). Some of these are made after the plan of the
American Digest System; others are encyclopaedic in form.

b. Digests of the various parts of the National Reporter System.

c. Digests of the various sets of selected cases.

3. English Digests.

a. Early Abridgments.

(1) Statham’s Abridgment, believed to have been first

printed about 1490. It contains abstracts of cases
down to the end of Henry Vi’s reign (1422-1461).
Many of them are not to be found in any published
Year Book. A modern edition in 2 volumes with
English translation was published in 1915 by Mar-
garet C. Klingelsmith.

(2) Fitzherbert’s Abridgment, published in 1514, abstract-

ing cases to the 21st year of Henry VII (1496-1497).

(3) Brooke’s Abridgment, published in 1568. It is based

largely on Fitzherbert, but abstracts cases down to
the year of Brooke’s death, 1558.

(4) Hughes’ Abridgment, published 1660-1662, is a sup-

plement to Brooke, abstracting cases from 1558 to
1660.

(5) Rolle’s Abridgment, published in 1668, edited by Sir

Matthew Hale. . . .

(6) Viner’s Abridgment, published 1742-1756, in 23 vol-

umes. The most ambitious of the abridgments, very
carefully edited.

(7) Conventry and Hughes’ Analytical Digested Index to

the Common Law Reports, published in 1827 and
digesting cases from 1216 to 1760.

b. Modern Digests. After Coventry and Hughes, there were

several digests of Common Law Cases, and Edward Chitty’s

Willis : Anglo-American Law

199

Index to Cases in Equity and Bankruptcy, but the only
modern digests of importance are:

(1) Mews, Digest of English Case Law. Publication was

begun in 1898. It digests cases in law and equity,
but omits cases which its editors deem of no present
value. The original work is in 16 volumes. An-
nual supplements keep it up to date.

(2) Butterworths’ Ten Year Digest (1898-1907) and

Butterworths’ Yearly Digest from 1908 to date.

(3) English and Empire Digest. Begun in 1919 and in

progress of publication. In 1923 13 volumes covering
A to County Courts had been published. It pur-
ports to be “a complete digest of every English
case reported from early time to the present day,
with additional cases from the courts of Scotland,
Ireland, the Empire of India, and the Dominions
beyond the sea”.

(4) Law Reports Digests, published by the incorporated

Council of Law Reporting, digesting from 1865 to
1912 only those cases reported in the Law Reports
and Weekly Notes, and thereafter including other
English cases and selected cases from Scotland and
Ireland :

(a) Consolidated Digest (1865-1890).

( b ) Decennial Digest (1891-1900).

(c) Ten Years’ Digest (1901-1910).

(d) Ten Years’ Digest (1911-1920).

( e ) Annual Digests with quarterly cumulative

supplements to date.

Generally speaking, the English digests are not as well done as the
American in substance or in form. They do not so thoroughly analyze
the cases digested or present so detailed a classification, nor do they
furnish such effective mechanical aids to one attempting to make an
exhaustive search of the decisions.

B. Encyclopedias.

An encyclopedia of law, or of a particular department of the law,
is an alphabetically arranged collection of treatises, each constructed
according to a uniform plan and each treating a single topic the
limits of which are so prescribed that the treatises will not overlap and
that taken together they will cover the entire field of law or of that
particular department of law. . . . The encyclopedia is often very

helpful in furnishing a general survey of a topic or a portion of a
topic, but its chief function is that of the digest. It is a valuable tool
in the search for applicable judicial precedents; but no statement in it
should be accepted at its face value until verified by the decisions cited
to sustain it.

1. American Encyclopedias.

a. American and English Encyclopedia of Law (1st ed., 1887-
1896), published in 29 volumes and index, covering sub-
stantive law and evidence.

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b. American and English Encyclopedia of Law (2d ed., 1896-

1905), published in 30 volumes and index, with a five-'
volume supplement (1905-1908), covering substantive law
and evidence.

c. Encyclopedia of Pleading and Practice (1895-1902), published

in 22 volumes and index, with a four-volume supplement
(1903-1909), treating procedural law in such a manner
that, in combination with the second edition of American
and English Encyclopedia of Law, the whole field of law
was covered.

d. Encyclopedia of Forms and Precedents (1896-1904), pub-

lished in 18 volumes.

e. American and English Encyclopedia of Law and Practice.

Publication was begun in 1900 but only 5 volumes covering
A to Assignment were produced.

/. Cyclopedia of Law and Procedure. Cyc (1901-1912) , published
in 40 volumes. Cumulative Annual Supplements have been
issued since 1901.

g. Corpus Juris. This is really a new edition of Cyc but on

the whole much better done. Publication was begun
in 1914; 33 volumes have been produced, and it is an-
nounced that it will be completed in 70 volumes. Supple-
mentary volumes are issued periodically to keep the cita-
tions up to date and to permit necessary additions to the
text.

h. Standard Encyclopedia of Procedure (1911-1922), published

in 26 volumes. Periodical supplements are issued.

i. Encyclopedia of Evidence (1902-1909), published in 14 vol-

umes. One-volume supplement in 1919.

j. Ruling Case Law (1914-1921), published in 28 volumes, with

a four-volume supplement (1921-1923). Its publishers as-
sert it to be “at once a digest of particular reports and
a compendium of the entire body of the law as developed
by United States Supreme Court Reports, Lawyers’ Edi-
tion, American Law Reports Annotated, Lawyers’ Reports
Annotated, American Decisions, American Reports, Ameri-
can State Reports, American and English Annotated Cases,
American Annotated Cases, English Ruling Cases, and
British Ruling Cases”. As a cyclopedic digest of the re-
ports named, it is valuable and useful in that it makes
largely unnecessary the handling of the digests of the
separate sets. As “a compendium of the entire body of the
law, etc.,” it is of comparatively small value and is to be
used with caution.

2. English Encyclopedias.

a. Encyclopedia of the Laws of England (1st ed., 1897-1898),
published in 12 volumes, with a one-volume supplement in
1903. It is a mere cyclopedic digest.

Willis: Anglo-American Law

201

b. Same (2d ed., 1906-1909), published in 15 volumes, with a

one-volume supplement in 1913 and a one-volume supple-
ment in 1918.

c. Halsbury’s Laws of England (1907-1917), published in 31

volumes, with periodically revised supplement. The form
of this work is similar to that of the American encyclo-
pedias.

cl. Encyclopedia of Forms and Precedents (1902-1909), pub-
lished in 17 volumes.

C. Textbooks or Treatises.

Textbooks and treatises exist in every degree of merit and of use-
fulness. Some are still, and others in the past have been, considered
to be practically authoritative expositions of the law as it was when
they were written. For example, Glanville is commonly accepted as
conclusive, for the original sources from which he formulated his state-
ments are largely unavailable. The same is true of much of Bracton.
Britton and Fleta, drawn largely from Bracton, are not so unreservedly
accepted. Littleton’s Tenures is still highly esteemed, and the writings
of Lord Coke, while no longer regarded as the pronouncements of an
ultimate authority, are generally greatly respected. Indeed, most of
these treatises are usually accorded almost equal respect with judicial
precedents.

Next in order comes a class of books which have had great influ-
ence on the development of the law, like Blackstone’s Commentaries,
Kent’s Commentaries, the works of Story, and Cooley’s Constitutional
Limitations. Contemporary books in the same category are Gray on
the Rule against Perpetuities, Wigmore on Evidence, and Williston on
Contracts. In such treatises the writers attempt not only to make a
clear and intelligible statement of the existing state of judicial opinion,
but also to examine critically the grounds upon which it rests and to
formulate their own reasoned conclusions as to what it ought to be.
These books represent the results of a lifetime of scholarly research
and real thought, and have more inherent worth than the decisions of
the vast majority of our too busy courts. Though, under the doctrine
of stare decisis, they have not the authority of judicial precedent, their
influence in shaping the law may safely be said to exceed that of the
reported decisions of very many of our appellate tribunals.

But unfortunately it must be said that the vast majority of text-
books are not in this class. The better of them do serve a useful
purpose similar to that of an article in a standard encyclopedia, but
many of them are a pure waste of good paper. At best they merely
give the reader a starting point in his search for authorities with a
very general survey of the topic in question ; and often they mislead him
as to the state of the law and delay him in finding the applicable
precedents. The student should get familiar with the names of the
better texts and treatises, so as to avoid wasting time and labor on the
others.

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Indiana University Studies

D. Law Dictionaries.

There is a long line of English Law Dictionaries beginning in 1538
with Rastell’s Expositiones Terminorum Legum Anglorum and ending
for the present with Byrne’s Dictionary of English Law in 1923. Amer-
ican dictionaries commence with Bouvier’s Law Dictionary in 1839, and
the latest first edition is Pope’s Legal Definitions, Words Defined by
the Courts, 1920. It is important to observe that many of these works
do not purport to give the usually accepted meanings of words or of
phrases, but merely collect definitions which the courts or legislatures
have made, and such definitions must be read in the light of the context.
They can never be relied upon as determining the general legal meaning
of a word or term. Important modern dictionaries are:

1. American.

a. Bouvier, Law Dictionary and Concise Encyclopedia (Rawle’s

Third Edition), 1914.

b. Ballentine, Law Dictionary, 1923 ed.

c. Judicial and Statutory Definitions of Words and Phrases, com-

monly known as Words and Phrases (1st series in 8

volumes, 1905; 2d series in 4 volumes, 1914).

2. English.

a. Byrne, Dictionary of English Law.

b. Mozley and Whitely, Law Dictionary (1923 ed.).

c. Stroud, Judicial Dictionary of Words and Phrases Judicially

Interpreted (ed. 1903-1909 in 4 volumes).

3. Australia.

Bedwell, Australasian Judicial Dictionary, 1920.

4. Canada.

Widdefield, Words and Phrases Judicially defined, 1914.

5. South Africa.

Bell, South African Legal Dictionary, 1910.

E. Legal Periodicals.

“For ten and twenty years past”, says Professor John H. Wigmore,
“there have been at the service of the profession more than a dozen
legal periodicals, publishing the weightiest critiques of current legal
problems.”112 And besides this number there have been many more,
some of them of doubtful value, and others practically worthless as con-
tributions to legal learning or scholarship. In the use of law magazines
the same painstaking discrimination is necessary as in the use of
treatises and of articles in legal encyclopedias. The standing of the
publication, the learning and ability of the writer, the authenticity of
his data, the inherent reasonableness of his deductions in the light of
legal history, existing social conditions and the known truths of all
sciences affecting human conduct, — all these must be carefully weighed
in attempting to place the proper value upon legal periodical literature.

A brief history of legal periodicals and a list of them, British and
American, will be found in Hicks, Materials and Methods of Legal

112 Wigmore, Evidence (2d ed., 1923), 115.

Willis: Anglo-American Law 203

Research, pp. 162-168, 572-609. Among the more important of them
now current are:

1. American (General).

a. Harvard Law Review.

b . Yale Law Journal.

c. Columbia Law Review.

d. Michigan Law Review.

e. Minnesota Law Review.

/. Illinois Law Review.

g. University of Pennsylvania Law Review.

h. American Bar Association Journal.113

2. American (Special).

a. Journal of American Institute of Criminal Law and Criminol-

ogy.

b. American Journal of International Law.

c. Medico-Legal Journal.

3. English.

a. Law Quarterly Review.

b. Juridical Review.

c. Solicitors’ Journal.

d. Canadian Bar Review.

F. Annotations to Statutes and Selected Cases.

In books containing reprints of constitutions, statutes, and selected
judicial decisions, as pointed out above, there are frequently included
as annotations much material by way of digests of previous cases and
commentaries thereon.

Key Books

A. Indexes.

1. Descriptive Word Index to Decennial Digest.

“A compilation of titles under which are references directing the
reader to the various topics and sections in the Decennial Digest. These
titles are words descriptive of essential facts which have constituted
the several elements of the right of action or defense in decided cases.
Many of these titles are words that describe, or the names of per-
sons, places, and physical things which have been the subject of dis-
pute. Some of them are words that describe a question of law or fact
not directly involving any particular person or thing, but going to
particular questions of law and procedure which have been the sub-
jects of dispute, and some of these titles are words that describe a con-
stitutional provision, a legislative act, or a legal doctrine which has
been the subject of dispute.”— Preface, p. ix.

2. Index and Concordance of Cyc. An index of subjects and topics

contained in Cyc arranged alphabetically.

3. Index to notes in Lawyers’ Reports Annotated.

a. Original volume covers 1 to 70 L.R.A. and 1 to 42 L.R.A.
New Series.

113 Perhaps in addition should he mentioned: California Law Review, Iowa Law
Review, and Virginia Law Review. — H.E.VV.

204 Indiana University Studies

b. Supplement covers 43 L.E.A. New Series to 1916 F, L.R.A.,

and 3-5 British Ruling Cases.

c. Triennial Index Digest covers 1915-1917 notes and cases.

4. Index to Notes in Annotated Cases, from 1 Ann. Cas. to 1916 B.

5. Index to Notes in American Law Reports, Annotated.

6. Common Sense Index to Negligence and Compensation Cases,

Annotated.

7. List of Important Notes in American Decisions, American Re-

ports, and American State Reports.

8. Jones, Index to Legal Periodicals in 4 volumes, thru 1922.

9. American Association of Law Libraries, Index to Legal Periodi-

cals, 1908 to date. This index is issued quarterly and cumu-
lated annually.

10. There are also various indexes to statutes, and practically every
set of selected cases is furnished with an index or an index-
digest. See also below Shepard’s Citations. The above list is
not intended to be complete.

B. Notes on Reported Cases.

1. Rose’s Notes to United States Reports.

Issued in 1901 in 12 volumes; revised 1917-1920 in 20 volumes.
These are annotations to the decisions of the United States Supreme
Court, showing where each decision has been cited by state and federal
courts, the point for which cited, and the disposition of that point by
the court so citing.

2. Notes to various state reports.

a. Notes on Minnesota Reports. These were published in 1911

and cover volumes 1 to 100 Minnesota Reports. They
“trace out every citation of each Minnesota case by any
court of last resort in this country, showing how it has
been applied, developed, strengthened, limited, or in any
way affected by later decisions that have cited it as a
precedent”. — Preface.

b. Publications similar to the Notes on Minnesota Decisions are

found in several other states, for example, by Joseph W.
Thompson in Indiana covering from 1 Blackford to 182
Indiana Reports, and 1 to 57 Indiana Appellate Reports,
and by Fred P. Caldwell in Kentucky covering 1 to 177
Kentucky Reports.

3. L.R.A. Cases as Authorities.

Published in 1913 in 6 volumes, show where every case in volumes
1-70 L.R.A. has been cited or referred to in any case reported in the
United States; also where every L.R.A. case has been cited in any
later annotations of Lawyers’ Reports Annotated, American State Re-
ports, English Ruling Cases, British Ruling Cases, and United States
Supreme Court Reports. They also note the affirmance or reversal of
every such case by the United States Supreme Court.

Willis: Anglo-American Law

205

4. Notes to American Decisions.

These treat the cases in American Decisions and American State
Reports in somewhat the same way as L.R.A. . Cases as Authorities
treats the cases in L.R.A.

5. The English and Empire Digest.

Gives with the digest of each case a reference to all subsequent
decisions in which such case is cited.

C. Tables of Cases Reported, Cited, Overruled, Etc.

1. Tables of Cases Reported and Cited.

a. Almost every volume and set of reports has a table of cases

reported and some have tables of cases cited therein.

b. The American Digest System and most other digests have

each a table of cases digested.

c. Most textbooks have tables of cases cited.

2. Tables of Cases Affirmed, Modified, or Overruled.

a. In the tables of cases in the American Digest System thru

the second Decennial, the notation after the particular case
indicates the final disposition of that case by the court of
last resort. In each yearly volume from 1917 on, there is
a separate table of cases affirmed, modified, or reversed
by decisions digested in that volume.

b. The sixth volume of the Digest of United States Supreme

Court Reports, digesting volumes 1-206, has a table showing
“all reported cases in state courts or lower federal courts
which have been affirmed or reversed by the Supreme
Court of the United States’'.

c. In several of the states such tables of cases have been pub-

lished from time to time; and several state digests con-
tain them. In some volumes of reports, there are tables
of cases modified or reversed, by the decisions therein.

D. Citators.

1, Federal Citations.

By Ash in 4 volumes, covering the period from 1789 to 1901. They
show where each case decided by the United States District Court,
Circuit Court, Circuit Court of Appeals, and Court of Claims has been
subsequently cited in the United States Supreme Court Reports, Federal
Reporter, Federal Cases, or state reports, and where cases in the state
reports have been cited in the federal reports.

2. Shepard’s Citation.

This series in conjunction with the Citator, which it is gradually
absorbing, covers the reports of all the courts of the United States,
the Reporter System, and the reports of every state except Delaware,
Kentucky, Mississippi, Nevada, and South Carolina. For each of these
states and for the District of Columbia a Shepard’s citation book is in
preparation. Each unit is kept up to date by periodical supplements.
The scope of the various units is not uniform. For example, the cita-
tion book for Connecticut includes citations of all Connecticut cases in

14—86004

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Indiana University Studies

the Connecticut Reports, the Federal Reporter, United States Supreme
Court Reports, and the Atlantic Reporter and in notes in the various
series of selected cases, and citations to the Constitutions of the United
States and of Connecticut and to the statutes of Connecticut; the cita-
tion book for Massachusetts has no citations to the Northeastern Re-
porter but otherwise is as extensive in scope as the Connecticut book.
The citation book for the United States Supreme Court furnishes cita-
tions to the United States Constitution, the Revised Statutes of the
United States, the Statutes at Large, and the rules of court; to the
official edition of the United States Supreme Court Reports, the Lawyers’
edition thereof, and the Supreme Court Reporter; and to decisions of
the Court of Claims, and of the various executive departments including
the Opinions of the Attorney-General. It has also a classification of
the American Digest System, Key Number Series.

3. Citer Digest.

The revised edition of this work was published in 1916 and is
kept up to date by cumulative supplements issued in January, May,
and September. It “shows the history and construction of each act of
Congress down to date”, giving reference to the Revised Statutes, Stat-
utes at Large, Compiled Statutes, and Federal Statutes Annotated, and
citing all cases where they have been dealt with by the courts.

CHAPTER xvrir
THE USE OF LAW BOOKS

The problem of how to use law books is a threefold problem.
It includes: first, the problem of how to find a legislative
enactment or a judicial precedent, if any, upon a given point;
second, the- problem of how to read and abstract reported
cases; and third, the problem of brief making, or how to
arrange the legislative enactments and judicial precedents
(as well as social statistics if used), in the form of a logical
argument.

Finding- Authorities:114' Statutes. If' a student, or lawyer,
has a point of law on which he desires to find the state of
the authorities he should first analyze his facts accurately
for the point of view, make an “index list” of apposite words
and phrases, and provide himself with a memorandum book
for opinions and case cards for cases. Then he should look
for legislative enactments, for if valid and applicable they
will usually decide the point. In the United States, this means
the Constitutions of the United States and of the state, acts
of Congress and treaties, as well as acts of the state legisla-
ture and subordinate bodies. In England, it is not necessary
to look for constitutional provisions. If any statutory provi-
sions are found, the way in which they have been interpreted
by the courts, if at all, must also be found.

United States Constitution. Every lawyer and law student
should be familiar enough with the United States Constitution
to know without examination whether or not his legal problem
involves a constitutional question of the federal Constitution,
but if he is in doubt he either can consult an index to the
Constitution or can search the document itself. Any judicial
interpretations of the Constitution can be found by using the
Citer-Digest, Shepard’s United States Citations, volumes 10
and 11 of the United States Compiled Statutes and Supple-
ments, and volumes 10 and 11 of the Federal Statutes
Annotated and Supplements; and by searching for judicial
precedents in the manner outlined below.

114 Morgan, Introduction to Study of Law; Cooley, Brief Making; Lawyers’ Co-
operative Publishing Company, Law Books and their Use; Kiser, Principles and Prac-
tice of Legal Research; Hicks, Materials and Methods of Legal Research.

(207)

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Indiana University Studies

State Constitution. What has been said above about find-
ing constitutional provisions in the federal Constitution will
apply to finding provisions in the state constitution. For
judicial interpretations thereof he must examine the annota-
tions to a local edition of the state constitution, Shepard’s
Citation Book for the state, and judicial precedents in general.

Treaties. If one ever has a problem involving a treaty
provision he can find it in the collections of Malloy and Gar-
field, the Numbered Series, and the United States Statutes at
Large, and he can find judicial interpretations thereof in the
judicial precedents. No distinctive helps are available in
this field.

Acts of Congress. The acts of Congress are found in the
United States Statutes at Large which have a numbered
volume published at the close of each session of Congress, in
the official Revised Statutes of the United States of 1875 and
1878, and in the unofficial Federal Statutes Annotated of
1906 and 1916, the United States Compiled Statutes of 1916
and Barnes Federal Code of 1919, and their supplements.
This body of authority is so voluminous that if the searcher
would find a provision on any specific point he should con-
sult the indexes and largely rely upon the descriptive word
method of search explained in connection with finding judicial
precedents. Where a statute is cited by its popular name, as
Sherman Act, or Carmack Amendment, it may be identified
by means of the “Table of Laws Designated by Popular
Names” in either the Federal Statutes Annotated or the
United States Compiled Statutes. Judicial interpretations of
federal statutes can be found in the annotations to the un-
official revisions and compilations, Shepard’s Citation Book,
and judicial precedents in general.

State Legislation. What has been said above with refer-
ence to finding congressional legislation will apply to finding
state legislation. An examination of the index of the latest
available compilation or revision of statutes must be supple-
mented by an examination of the indexes to the later session
laws. The legislative and judicial history of state statutes can
be found in annotated editions of the statutes, Shepard’s
Citation Book, and judicial precedents and lesser authorities.

Other Legislation. Ordinances and resolutions of municipal
legislative bodies cover only a narrow field, but where search

Willis: Anglo-American Law

209

for them is necessary the process is similar to that described
above. For interpretations thereof judicial precedents and
lesser authorities must be searched.

English Statutes. The British Constitution consists of acts
of Parliament regulating the machinery of government, rules
of the common law relative thereto, and usages sanctioned by
custom. English statutes can be found in the Statutes at
Large from Magna Charta, 9 Henry III, to 41 George III;
Statutes at Large, United Kingdom, from 41 George III to
32 Victoria; and the Law Report Statutes from 32 Victoria
on. They can also be found in such compilations as Chitty's
Statutes. A table of statutes construed can be found in the
front part of each volume of Halsbury’s Laws of England.
Many of the early English statutes have become a part of our
common law, and many recent United States statutes (e.g.
uniform laws) are based upon recent English statutes.

Judicial Precedents. After statutes, the next most im-
portant authorities for the student or lawyer to consult on
any given point are the judicial precedents, and this is true
whether or not he finds a constitutional or statutory provision
in point, for if he finds such a provision he must search for
its meaning in the judicial precedents, and if he finds no such
provision he must search the judicial precedents for his
primary authority. After the judicial precedents the next
most important authorities are the books of secondary
authority. It would seem, therefore, that the order in which
the student or lawyer should proceed would be, first, to ex-
amine the books containing statutes; second, to examine the
books containing the judicial precedents; and third, to ex-
amine the books of secondary authority; but this is not so.
Books of secondary authority are key books opening the doors
to the judicial precedents as well as books of secondary
authority. For this reason the practical order for the student
or lawyer, after an examination of the statutes, should prob-
ably be: (1) textbooks, (2) encyclopedias, (3) digests, (4)
selected cases, (5) citation books, (6) periodicals, and (7)
tables of cases.

Textbooks. In determining his legal problem by his analy-
sis of his facts, the student or lawyer will have determined
the general subject, as “contracts” or “property” as well as the
specific subject, as “sales” or “wills”, for which he will need

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Indiana University Studies

to use a textbook. He should select the latest editions of
several of the best textbooks, if any, upon his appropriate sub-
ject. To find the particular point for which he needs to use
such textbooks he should examine the tables of contents to find
the subdivision where his particular topic is discussed, and if
he cannot find what he wants in this way he should examine
the indexes to find the selected word or phrase where his
apposite word or phrase is treated. Sometimes in this work
the searcher will find new words or phrases suggested to him
which will help him in his further search.

Encyclopedias. In discussing the use of encyclopedias only
the use of Corpus Juris-Cyc will be explained, because if the
student learns the method of using this set he can adapt the
method to the use of any encyclopedia by substituting for the
“law chart” the publisher’s scheme of classification. The
publishers of the above encyclopedia have issued a law chart
which shows their scheme of. classification. According to this
chart the field of the law is divided into seven grand divisions:
Persons, Property, Contracts, Torts, Crimes, Remedies, and
Government; each grand division has a number of. subheads;
and each subhead a number of topics. The topics are the
titles of articles treated in Corpus-Juris and' the Cyclopedia
of Law and Procedure. At the head of each of such articles is
a detailed analysis of its contents and a table of cross-refer-
ences to other articles treating related subjects. The Cy-
clopedia of Law and Procedure has an index* called “Index
and Concordance of Cyc”. If a reference to that work is found
it can be translated into the proper reference to Corpus-
Juris by the parallel reference tables in each volume of
Corpus-Juris. The searcher should be able to decide from his
preliminary analysis of his facts within which grand division
of the law as above divided up his problem falls. If it falls
within two or more, as for example persons and contracts,
other things being equal it will be treated under the first one
in the order given. He must then examine the subheads in the
grand division selected, and after that the topics under the
subhead, to ascertain where his question is most likely to be
treated. With these topics found he should consult the analy-
sis and table of cross-references at the head of each. Finally,
as an additional safeguard, he should scan the Index and Con-
cordance of Cyc for the apposite words and phrases in his list,

Willis: Anglo-American Law

211

and find later cases by examining the Annotations to Cyc or
Corpus Juris-Cyc. Any cases which the searcher thus finds
and expects to use should both be noted on his case card and
examined in the original reports.

American Digest System. The classification scheme of the
American Digest System is practically identical with that of
Corpus -Juris. It has seven categories which correspond
exactly to the seven grand divisions of Corpus Juris-Cyc. The
seven categories -are divided into thirty-four divisions. 'These
divisions are subdivided into 413 titles, which is less than
Corpus Juris has. Each title represents a separate topic in
the digest, under which digest paragraphs are arranged in
divisions, subdivisions, sections, and subsections, each intro-
duced by a descriptive line. Preceding these paragraphs are
a scope note, an analysis, and a list of cross-references. This
system also has a Descriptive Word Index, made up of words
and phrases alphabetically arranged, which constitute or de-
note or describe each of the 413 topic titles and each descrip-
tive line of divisions, subdivisions, sections, and subsections
of the digest; legal mandates, concepts, and doctrines, per-
sons, places, and things; wrongs and injuries; different
grounds of defense ; various kinds of relief ; every step and the
manner of taking it in* the conduct of a lawsuit; and every
step in procuring the enforcement of an order or judgment.
References are to the First Decennial Digest, but the para-
graph numbers in the First Decennial Digest (key numbers)
are identical with all subsequent parts of the system, that is,
to all parts of the American Digest except the Century Edi-
tion. The searcher for judicial precedents thru the American
Digest System, therefore, has two methods which he may
pursue. With his problem determined, he can proceed to find
his materials by using the classification scheme, ever working
from the larger to the smaller head until he finds his particular
point treated; or, with his apposite words and phrases
selected, he can look for them or synonyms of them in the
Descriptive Word Index. In selecting his apposite words, the
searcher should have analyzed his case as to parties, place,
or thing; wrongful act or injury, relief asked, and steps in
the action, so as to give him descriptive words for each point.
The searcher should examine the Century Digest, the two
Decennials, and the Cumulative Table of Key-number Sec-

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Indiana University Studies

tions, and also the monthly advance sheets. Any cases found
in the digest paragraphs should be examined in the original,
since the digest paragraphs are only the headnotes of the
cases. Theoretically a searcher should find any judicial prec-
edents in point, whichever one of the American Digest
methods he pursues, but practically it is sometimes very diffi-
cult, if not impossible, to follow the trail of the digester, as
for example, when he digests the second child labor decision
under internal revenue. Hence the searcher should not give
up if he does not find the materials which he needs by follow-
ing the two methods outlined above, but should also employ
the other methods of search outlined in this chapter.

State Digests. If the searcher’s problem involves the law
of a particular state, he should examine the digest of that
state, if any ; and it may be advisable to examine the available
digests of all the states if pertinent material cannot be found
in the American Digest System. State digests are generally
built on the plan of either the American Digest System or on
the plan of Corpus Juris-Cyc, and the schemes of search ap-
plicable to them can be applied to state digests.

English Digests. In using the English digests the searcher
should not use the descriptive word method but the scheme
of classification method, and should familiarize himself with
the particular scheme of classification employed by each digest,
and with the equivalent English words used for certain United
States words, as ‘‘company” for “corporation”, “local govern-
ment” for “municipal corporations”, and “land clauses act”
for “eminent domain.”

Selected Cases. In searching for materials in the various
selections of cases known as American Decisions, American
Reports, American State Reports, American and English An-
notated Cases, American Annotated Cases, English Ruling
Cases, Lawyers’ Reports Annotated, United States Supreme
Court Reports (Lawyers’ Edition), British Ruling Cases, and
American Law Reports Annotated, the searcher should use the
separate digest or index digest of each series which is built
on the descriptive word plan, or Ruling Case Law which is a
digest built on the encyclopedic plan for all cases and annota-
tions in all of the series up to January 1, 1923.

Citation Books. For the subsequent history of the cases
which the searcher has found in textbooks, encyclopedias,

Willis : Anglo-American Law

213

digests, and series of selected cases and of which he should
at some time make an abstract on his case cards, the searcher
should consult the books of notes on reported cases, the tables
of cases reported, cited, overruled, etc., and the citators; and
for the history and construction of acts of Congress, the Citer
Digest.

Periodicals. To find periodical material the searcher must
search the indexes of separate periodicals, Jones' Index, and
the Index of the Association of Law Libraries for char-
acteristic titles and descriptive words and phrases as in the
other books heretofore discussed.

Table of Cases. Whenever it is necessary for the searcher
to look up any or all of his cases on his case cards, either for
the purpose of abstracting them or to eliminate those of no
worth, he will find it profitable to use the appropriate table
of cases available. The First Decennial Table of Cases, com-
mencing with volume 21 and running thru five volumes, is the
most complete table of American cases and covers the cases
decided from 1658 to 1906.

Analysis of Unit Operations and Analysis of Distinctive
Jobs in Legal Bibliography. Immediately following is printed
the material upon these two topics prepared by Dean John H.
Wigmore. It is believed that this material covers all the
operations used in the finding of authorities, and that the
student who will solve the problems therein given, with the aid
of the hints heretofore supplied and with such other incidental
information as he will acquire in working on them, will ac-
quire a mastery of the art of using law books so far as it
relates to finding authorities.

LEGAL BIBLIOGRAPHY115
ANALYSIS OF UNIT OPERATIONS
By John H. Wigmore116

I. General Purpose :

To qualify a young lawyer with adequate skill to make practical use of all
the printed sources of law ordinarily resorted to in professional practice.

115 Dean Wigmore has kindly consented to the incorporation in this study of both
his Analysis of Unit Operations and his Analysis of Distinctive Jobs in Legal Bibliog-
raphy. They are published here for the first time.

116 Dean and professor of law. Northwestern University Law School.

214

Indiana University Studies

II. Method:

This general purpose is attained by analyzing all the various main
operations or ways in which a lawyer is called upon to use these sources; by
furnishing the student with the needful information about them, and; finally,
by testing his ability to use each one of the operations separately, and to use
them as a whole in the performance of standard jobs requiring skill in the use
of law sources.

III. General Works of Reference to he Used for Information:

1. Brief-Making and the Use of Law Books, Cooley.

2. The Reporters, Wallace.

3. Handbook of English Law Reports, Fox.

4. Select Essays in Anglo-American History, Vol; 2. Essays by Holds-
worth, Veeder.

5. Publishers’ catalogues, Callaghan, Flood, Jbnes.

G. Chicago Law Institute Catalogue.

7. Miscellaneous books on legal bibliography.

IV. Classification of Materials:

A. Judicial decisions: private reports for single jurisdictions.

B. Judicial decisions: official reports.

C. Judicial decisions: nation-wide reporting systems.

D. Judicial decisions: digests and other finding apparatus.

E. State legislation.

F. Federal legislation.

G. Treatises.

H. Encyclopedias.

7. Government bureaus and commissions.

J. Periodicals.

K. Location of books in library.

V. Analysis of Unit Operations in the Use of Law-Sources:

Kind of Material Used
A. Judicial decisions:
private reports for
single jurisdictions:

1. Abbreviations of
names.

2. Reporter’s jurisdic-
tion.

3. Reporter’s period.

4. Reporter’s court.

Operation Involved

Translate the abbrevia-
tions of the reporter’s
name.

Identify the jurisdiction
of the reporter.

Locate, approximately
(by century), the period
of the report.

Locate the court in which
the reporter reported.

Example Test for
Operation

What name is meant by
M. & W.? Burr.? Rich.?

What court was reported
by Breese, Johnson, Met-
calf, Wilson, Campbell,
Dallas?

In what century or half-
century were the reports
of Espinasse, Day, Bay,
Wallace?

What court was reported
by Blackstone, Johnson,
Cranch, Howard?

Willis: Anglo-American Law

215

Kind of Material 'Used
B. Judicial decisions:
official reports for
single jurisdictions:
1. Scope of official re-
ports.

2. Relation of official
series to prior pri-
vate'reports.

3. Multiple series for
a single state.

4. Numbers of Vol-
umes in official
series.

C . Judicial decisions:
nation-wide reporter
systems:

D. Judicial decisions:
digests, citators, and
other finding appara-
tus:

Operation Involved

Determine what portion
of a state’s judicial re-
ports, is covered by the
official series.

Determine whether the
official serial numbering
goes back to the begin-
ning, or to what period.

Discriminate the several
series, in a- single state, as
to the different courts.

Determine, approx-
imately, the modernness
of a given official volume
by the serial number.

a. Locate cases. given by
title in the proper series
and volume of the princi-
pal systems.

b. Translate into one sys-
tem citations given in
another^system.

(For further subdivisions,
reference is made to Mr.
Daly’s course on the re-
porter systems.)

a. Use the various find-
ing apparatus to find de-
sired authorities on a
particular point.

Example Test for
Operation

Does the official series
cover all reports since
the beginning, in Illinois,
New York, Massa-
chusetts, Connecticut?

If not, how much?

In the following states,
does the current serial
numbering begin after
the private reporters, or
does it include the pri-
vate reporters in its
total? If the former,
about what period did
the official numbering be-
gin? If the latter, what
is the first official number
that is used in the series
— Massachusetts, New
York, South Carolina.

In the following states,
are there separate official
series for different higher
courts — Illinois, Wiscon-
sin, Oklahoma, Texas?
What is the current high-
est number in Indiana,
Illinois, Massachusetts,
New York?

216

Indiana University Studies

Kind of Material Used

E . State legislation:

1. Extent of codifica-
tion.

2. Subjects of codes.

3. Names of compila-
tions.

4. Style of compila-
tion.

5. Official and unoffi-
cial compilations.

6. Session laws:
names.

7. Session laws:
citation.

8. Constitutions.

Operation Involved
b. Trace a given cited
authority to its place in
the digest, etc.

(F or further subdivisions,
reference is made to Mr.
Daly’s course on the
digest system.)

Discriminate between
states which do and do
not base all their law, or
parts of it, on codes.
Discriminate as to extent
and varieties of subjects
of codification.

Discriminate as to names
of different compilations.

Discriminate as to the
system employed in the
compilation, in grouping
the material, and the
mode of finding specific
laws by index or contents.

Discriminate as to the
authority of different
compilations, as official
revisions, or official com-
pilations, or private com-
pilations.

Discriminate as to names
given to annual enact-
ments.

Designate a specific law,
so as to refer to the exact
law-text desired.

Locate the state consti-
tution, and determine
present validity as to
later amendments.

Example Test for
Operation

Have the following states
codes, or only statutory
compilations: Illinois,

Indiana, Iowa, Georgia?
How many, and what
codes have the following
states: Iowa, Georgia,
Louisiana, New York?

Is the name compiled, or
revised, or general, or
what other name, in the
following states: Ver-
mont, Massachusetts,
U.S., Wisconsin?

Is the order of topics in
the statutes of the follow-
ing states merely alpha-
betical, or based on some
scheme of juristic analy-
sis— Illinois, Massachu-
setts, Wisconsin?

In the following states, is
the currently used com-
pilation official or unoffi-
cial: Illinois, Massachu-
setts, New Mexico, New
York?

What is the official name
of the annual laws in
Massachusetts, Illinois,
Virginia?

How is a particular law
cited in the following
jurisdictions: Illinois,
Massachusetts, Ohio?
Where is each state con-
stitution to be found?
Where can they adl be
found? What states have
new constitutions" since
1901? Where are consti-

Willis : Anglo-American Law

217

Kind of Material Used

9. Revised statutes
and session laws:
Finding apparatus.

F. Federal Legislation:
1. Compilations.

2. Annual laws:
citation.

3. Revised statutes
and annual laws:
Finding apparatus.

G. Treatises:

1. Complete lists.

2. Handbooks and
reference books.

3. Relative status as
authority.

4. Comparative use of
general works.

Operation Involved

Find a law given by sub-
ject only, without date or
other citation.

Discriminate the several
federal law compilations
or consolidations.

Discriminate as to au-
thoritative sources of the
annual legislation.

Find a law by subject
only, without date or
other citation.

Use a working list for
selection of treatises to
be consulted.

Discriminate between a
handy elementary book
and a complete reference
work.

Discriminate between
standard and ephemeral
works.

Use books of different
authors on same general
subject for comparison of
views.

Example Test for
Operation

tutional amendments
published?

Where can be located the
statute giving an action
for death by wrongful act
in Illinois, California?

What period is covered
by the Federal Revised
Statutes? The Federal
Compiled Statutes? How
find in the latter a cita-
tion to the former?

In what form are the
Federal Annual Laws
officially published? How
is a federal statute cited?
Find and bring the Selec-
tive Service Act of 1917,
in official source. Bring it
in another source.

Bring a list of the princi-
pal treatises on the fol-
lowing subjects, since
1880: Contracts, Torts,
Damages.

Bring an elementary and
a reference work in the
following subjects: Sales,
Damages, Contracts.
Bring a standard work on
the following subjects:
Municipal Corporations,
Eminent Domain, Patent
Law.

Bring the following
works, with a marker at
the place of treating the
same topic: a. Whether a
release of a contract must
be under seal, in Page
and Williston; b. Whether
a child can recover who
enters railroad premises
and is hurt at an un-
guarded turntable, in Jag-
gard, Pollock, and
Thompson.

218

Indiana University Studies

Kind of Material Used
5. Comparative use of
special works.

6. Editions.

7. Supplementing a
treatise by later
authorities.

H. Encyclopedias:
1. Varieties.

2. Use.

7. Government Bureaus
and Commissions:

1. United States gov-
ernment bureaus
and commissions.

Operation Involved
Use books on specialized
parts of a general subject.

Discriminate between old
and current editions.

Discriminate as* to up-to-
date information to sup-
plement the authorities
cited in a treatise.

Discriminate in the scope
of encyclopedias.

Discriminate in the re-
liance’to* be placed on the
text and citation.

Find sources outside of
court decisions and legis-
lative acts.

Example Test for
Operation

Bring, with Jaggard on
Torts, six other books
covering the special sub-
jects of Defamation,
Death by Wrongful Act,
Unfair Competition.

Is Dillon the latest stan-
dard work on Municipal
Corporations? IsMachen
or Cook the latest work
on Corporations? What is
the date of the first and
the last edition of Green-
leaf on Evidence?

After perusing the au-
thorities in 495 Wharton
on Criminal Procedure,
10th ed., where would you
begin, in searching for
later a. statutes; b. de-
cisions, in California,
Illinois? Give year of
statute and volume of
reports and state reasons.

Bring one volume each of
the principal encyclope-
dias now current on the
topic, Fourteenth Amend-
ment to the United States
Constitution.

In the Cyclopedia of Law
and Procedure, on the
proposition that no action
lies for fright alone, with-
out illness, look up the
citations and report how
many are cited correctly
to that point.

Bring a ruling of the
United States Land Of-
fice. Bring the decision
of the Interstate Com-
merce Commission in the
Trans-Missouri Freight
Rate Cases.

Willis: Anglo-American Law

219

Example Test for

Kind of Material Used Operation Involved Operation

Bring the Proclamation
of tho President Declar-
ing War on Germany,
April 6, .1917.

Bring the latest volume
of the United States
attorney-general's opin-
ions.

2. State- bureaus and Bring the latest volume

commissions. of the Illinois Industrial

Commission’s Rulings.
Where are the Minnesota
Blue-Sky Law Commis-
sion’s rulings reported?
Where do you find the
opinions of the Illinois
attorney-general?

Utilize the specific values Bring citations of three
of periodicals. Determine articles on the Right of
the various sources avail- Privacy, naming, the
able. author.

Find in three law journals
an editorial comment on
the case of United States
v. United Shoe Machin-
ery Co., 247 United
States 32.

LEGAL BIBLIOGRAPHY

ANALYSIS OF DISTINCTIVE JOBS
IN A LAWYER’S PROFESSIONAL AND CUSTOMARY USE OF
PRINTED LEGAL SOURCES

By John H. Wigmore117

1. GIVEN: The names of parties to a decided case in an appellate
tribunal ;

FIND : The citation of the report of that case.

Example : The “doctrine of the Debs Case” is referred
to in discussion. Find the citation.

la-. An opponent’s brief contains the following citation :

“Smith v. Jones , 101 Ala. 230.” There is such a case
but the citation is apparently erroneous. Find the cor-
rect citation.

J. Periodicals:

1. Kinds.

2. Use.

117 Dean and professor of law. Northwestern University Law School.

220

Indiana University Studies

2. GIVEN:
FIND :

3. GIVEN :
FIND :

4. GIVEN:
FIND:

5. GIVEN:
FIND:

6. GIVEN:
FIND:

7. GIVEN:
FIND:

The citation of the original report of a case;

All duplicate or collateral reports of the same case.
Example: An opponent’s brief names U.S. v. Debs, cit-
ing the C.C.A. ; but your library does not contain the
C.C.A. reports. Find the case in other series which
perhaps you possess.

The statement of a point of law decided in a specific
reported case not cited by name or volume or other clue;
The citation of the report.

Example: Your partner remembers once seeing a de-
cision in a western state that a plea of truth was no
defense in a civil action for libel, which is the point of
law in your client’s case. Find the citation of the case.

The citation of a reported case;

Cases where it has been followed, overruled, reversed,
distinguished, or explained; (a) in the same jurisdic-
tion; (6) in other jurisdictions of the U.S.

Example: Adams v. U.S., 192 U.S. 985 (1904) is just
the authority that settles your client’s case ; but - is it
still recognized in full force? Find later cases in the
same court referring to it.

The citation of a reported case;

The status of that case in the esteem of recognized
juristic authors, editors, and other commentators.
Example: R. R. Co. v. Stout, 17 Wall. 657, the first of
the so-called “Turntable Cases”, announcing the doc-
trine of “attractive nuisances” for children’s injuries
when trespassing. Find the status of that doctrine
’today among commentators, etc.

The statement of the effect or tenor of a statutory pro-
vision, not identified by volume or date or other clue;
The citation of the statute’s authentic text.

Example: Your client is interested in a case (or a pend-
ing bill) involving larceny of cattle, and some friend
tells you he understands that Colorado recently enacted
the most stringent law on that subject. Find the Colo-
rado statute.

The citation of a statutory provision;

The interpretation and validity of that statute as passed
upon by the appellate court of the jurisdiction.
Example: Your client’s case involves the foreclosure of
a mortgage against an absent soldier, and you have been
given the citation of the Wisconsin and Oregon statutes,
which are like the one in your state, suspending pro-
ceedings against absent soldiers. Find the decisions in
those states passing upon those statutes.

Willis: Anglo-American Laiv

221

8. GIVEN:
FIND:

The citation of a statutory provision;

The present validity of that statute with reference to
later legislation.

Example: Your client in Illinois, an insurance company,
has a case arising under the California Workmen’s Com-
pensation, Safety, and Insurance Act. You have a hand-
book of 1914 giving the California Act of 1913. Find
the present validity of its text under legislation to date.

9. GIVEN:

The terms and citation of a regulation , ruling, or ordi-
nance of an administrative officer or municipal govern-
ment;

FIND:

The validity of the regulation, etc., as dependent on the
powers exercised.

Example: A municipal bond issue of 1915 by the City
of Dubuque, Iowa, is submitted for your opinion. Locate
the authentic report of the local referendum affecting
the debt limit.

10. GIVEN:

The terms of a statute, and its citation, in a particular
jurisdiction;

FIND:

For the purpose of comparison, the contemporary statu-
tory provision on the same point in other jurisdictions.
Example: The Ohio Workmen’s Compensation Act pro-
vides that in hearings before the Commission “the tech-
nical rules of evidence shall not apply.” Find what other
states have adopted a similar provision.

11. GIVEN:

A question of law arising out of a particular state of
facts, upon which legal advice is to be given as to a
party’s rights, duties, status, or remedies;

FIND:

All the sources of law (excluding obsolete or merely
historical sources) which bear directly upon that ques-
tion of law in the jurisdiction concerned.

Example: Your client, a woman, has been elected mayor
of a town. The principal point of law is whether a
woman is eligible to the office of mayor. Collect all
the sources of law on this point in your state.

12. GIVEN:

A proposition of law (assumed to be today valid), de-
pending on either judicial ruling or statute, or both,
whose ponor tenor is material to giving advice on the
case in hand;

FIND:

The sources which show the prior tenor of the rule on
that subject, as far back as may be material.

Example: Your client claims land in Illinois thru a
nonresident alien uncle, whose brother came to that
state in 1850 and died in 1899. A state statute form-
erly forbade acquisition of land thru a nonresident alien ;
but that statute was changed or repealed in 1895. Find
the sources showing the law from 1850 to 1895.

15—36004

222

13. GIVEN :
FIND:

14. GIVEN:
FIND:

15. GIVEN:
FIND:

16. GIVEN:
FIND:

17. GIVEN:
FIND:

18. GIVEN-
FIND:

Indiana University Studies

A legal doctrine , maxim, or principle;

Its origin ; (a) legal ; ( b ) historical.

Example: A judicial opinion cited against you refers
to the principle that “common law copyright is lost by
publication.” Find (1) the original statute or decision
declaring this doctrine; (2) the surrounding causes lead-
ing up to it.

A contemporary statute in any jurisdiction;

Its origin, by tracing it to (a) the parent statute; ( b )
the cause for its enactment, in public opinion, private
interest, or the like.

Example: Your state legislature has just passed an act
authorizing a judge to summon expert witnesses not
summoned by the parties, and its constitutionality is
questioned. Find (1) the parent statute in another
state; (2) the reasons leading to its enactment.

A proposed measure to change existing law by legisla-
tion (whether a bill be yet pending or not) ;

The chief sources containing the arguments pro and con
for the proposed measure.

Example: The Aircraft Club has caused an elaborate
bill on aviation to be introduced in the legislature. The
chamber of commerce retains you to furnish an opinion
which will guide them as to supporting or opposing it.
Find the arguments pro and con, its provisions in dis-
cussion elsewhere.

A legal rule in the domestic jurisdiction;

The rule on the same matter in another system of law
(Roman law, French, Italian, Brazilian, etc., etc.).
Example: Your client is the widow of a welhto-do ex-
service man, recently deceased, who married her in
France under a French marriage contract. Find the
French law sources, so as to advise her.

A legal rule;

Its position among philosophers, economists, publicists,
etc., etc., (lay writers).

Example: A bill is pending to increase the percentage
of the inheritance tax. Your clients represent interests
which believe that the tax is already at the danger point,
and retain you to argue before the legislative committee.
Find the views of philosophers, economists, etc., on which
to found your argument.

A topic of current legal discussion;

The articles in legal periodicals dealing, with it.
Example: In preparing for an argument before a legis-
lative committee, you have been told of an important
article on the proposed division of Illinois into two
parts; the informant thinks that the article appeared in
the Illinois Law Review. Find the article.

CHAPTER XIX

READING REPORTED CASES AND STATUTES AND
ABSTRACTING REPORTED CASES118

The Reports. The reports are generally, in the United
States, the reports of proceedings in appellate courts, but they
may be the reports of proceedings in trial courts ; and they may
be the reports of only a portion of the proceedings instead of
all the proceedings in any particular litigation. A complete
report of a case generally contains: the title of the case;
headnote or syllabus; statement of the case; abstract of argu-
ments of counsel ; opinion or opinions of the court; and a -state-
ment of the disposition of the case.

Title. The title of a case in a trial court is made up of
the names of the parties litigant, with a designation of the
character in which they appear. Thus, in an action by John
Brown against Peter Jones, the title would be John Brown,
Plaintiff, v. Peter Jones, Defendant, or sometimes In re Peter
Jones. On appeal, in the latter case, the title remains the
same; but in the former, the title depends upon the jurisdic-
tion. In some jurisdictions, the first name in the title on ap-
peal is that of the one appealing. If Peter Jones, for example,
should appeal, the title would appear Peter Jones, Appellant
(or Plaintiff in Error) v. John Brown, Appellee (or Respond-
ent, or Defendant in Error) . In other jurisdictions the order
of the names of parties is not changed but only the designa-
tion. In -such jurisdictions, even if Peter Jones should appeal,
the title would remain J ohn Brown, Appellee (or Respondent ,
or Plaintiff -Appellee) v. Peter Jones, Appellant (or Defend-
ant-Appellant) . In the casebooks, placed in the hands of stu-
dents for use in law schools, the title includes not only the
names and designation of parties, but the date of the decision,
and the book and page of the official report wherein the case
was originally reported.

Headnote. The headnote or syllabus, which generally
comes at the head of a report below the title, is sometimes
made by a reporter and sometimes by the judge who writes
the opinion for the court, and it is sometimes an abstract
of the facts with a statement of the decision and sometimes

ns Morgan, Introduction to Study of Law; Wambaugh, Study of Cases.

(223)

224

Indiana University Studies

only a statement of propositions of law for which the case
stands. Headnotes are generally the materials used by
digesters, but they are not part of the opinion, and may be
inaccurate or absolutely wrong, and therefore should not be
substituted for the opinion.

Statement of Case. The statement of the case, either by
the reporter or by the court, usually precedes the opinion, but
it is sometimes embodied in the opinion, either at the be-
ginning, or middle, or end. The statement of the case should
show the facts upon which the controversy turns, the manner
in which the points in dispute were brought to the attention
of the trial court, and the manner in which the case was
brought to the reviewing court, if the report is an appellate
court report.

Arguments of Counsel. At the present time it is usual to
print the names of counsel, either preceding or at the end of
the opinion, but to omit all reference to their arguments, but
most of the older reports contain an abstract of the arguments
of counsel.

Opinion. The opinion may be anonymous, when it is called
in the United States a per curiam opinion. Ordinarily the
opinion of the court is written by one member thereof, desig-
nated by the presiding judge or determined in some other way,
but the different members of the court may write separate
concurring opinions; and when the judgment of the court is
not unanimous the judges who disagree frequently write dis-
senting opinions. There is no rule as to the length of the
opinion or the style in which it shall be written. Two of our
greatest judges have set opposite standards as to the length
of opinions: Mansfield for shortness of opinions and Mar-
shall for length.

Disposition of Case. At the end of the opinion there is
made a brief statement of the disposition of the case, as “Case
remanded”, or “Judgment reversed”, or “Order affirmed”.

Authority of a Case. Any principles announced by a court
upon any, of the issues in a case are primary authority in
any later cases involving the same issues in the same jurisdic-
tion, and if the court is a court of last resort, inferior courts
of the same jurisdiction will feel bound to follow them except
under the most extraordinary circumstances. That is, an

Willis: Anglo-American Law

225

opinion of a court in such jurisdiction has imperative author-
ity in so far as it voices the principle actually dictated by
the decision. This is the doctrine of the case, the proposition
or propositions of law which usually follow a discussion and
which are easily found and quoted. Any principles of law
announced by a court on hypothetical cases put by way of
illustration, or beyond the facts of the case, or upon collateral
matters are only secondary authority. They are called dicta,
or obiter dicta . So far as concerns authority they are in the
same class with the opinions of text-writers and legal essayists
and the doctrines of courts of other jurisdictions. An opinion
is doctrine, and not dictum or dicta, not only where a court
decides one point on one ground, but where it decides one
point on more than one ground, or more than one point in
favor of one party on different grounds, or one point one way
and another another, or finds no errors where there are a
number of suggested errors; but where there are discordant
opinions, agreeing in result but differing as to grounds, or
where an opinion ignores the point, or where there is no
opinion at all it is difficult to find any doctrine for which the
case stands.

Evaluating the Doctrine of a Case. Even tho an opinion
may be doctrine within its own jurisdiction there are various
circumstances which may affect its weight, either as primary
authority within such jurisdiction or as secondary authority
outside of such jurisdiction. It is necessary, therefore, for the
student or lawyer to put the proper value upon the opinion.
The circumstances affecting the weight of an opinion may be
classified as those relating to the court, whether trial, inter-
mediate, or appellate, whether obscure or well known, whether
poorly educated or well educated; those relating to the judge,
whether learned or “famously ignorant” ; those affecting the
report, whether official or unofficial ; those affecting thoroness
of consideration, as lack of argument, or argument on only
one side, or argument by weak counsel; those affecting the
opinion, as failure to notice existing authorities, or opinion by
a divided court ; those relating to the economic, political, and
social conditions of the time; those relating to the judicial his-
tory of the case, as whether it is a case of first impression,
whether it has been modified or affirmed, whether it has
been often cited, and whether it is in accord with the modern

226

Indiana University Studies

trend of decisions ; and those relating to its present applic-
ability in the light of newly discovered truths and changed
social policy.

Statutes. A complete statute contains its title, a pre-
amble, and the body of the statute, otherwise called “pur-
view”, which includes the enacting clause, the interpretation
clause, the saving clauses, and the repealing clause if any.

Interpretation. The authoritative principles derived from
decisions are not written but are ascertained by the use of
reason, and therefore case law is called unwritten law, tho
found in written opinions ; but in the case of statutes the rules
are found in the very words of the statutes, which are there-
fore called written law. A decision is a judicial act, a statute
a legislative act. Future decisions can be predicted much
more surely than future statutes. Any work of the courts in
elucidating the meaning of statutes takes the form of inter-
pretation or construction. Statutory questions are settled, not
by legal theory, but by verbal criticism. Hence whenever a
statutory question is involved one should not depend upon his
memory but should examine the very words of the statute.
The purpose of interpretation is to ascertain the intention
of the framers of the statutes, and to this end a number of
rules have been evolved. First, there are rules which apply
to all written instruments, as technical words are to be under-
stood in their technical sense ; words with changing meaning
are to be construed as they were understood at the time;
words are to be construed in connection with the context; all
words are to be given meaning if possible; doubtful words
are to be construed so as to make sense and not nonsense,
justice and not injustice; words are to be construed so as to
carry out the main purpose of the statute ; clerical and gram-
matical errors are to be ignored if the meaning can be as-
certained notwithstanding them ; and punctuation may be ap-
pealed to as an aid to the sense. Second, there are rules which
apply especially to statutes, as words are to be construed so as
to make the statute valid if possible; words are to be construed
so as not to give retroactive effect; penal statutes are con-
strued strictly; remedial, liberally; the words of a statute
are to be construed in the light of pre-existing law; words in
a series of statutes are to be construed as if the series were
one statute; and words of a statute will be construed not to

Willis: Anglo-American Law

227

apply where the court takes judicial notice that they do not
come within the legislative intent.

Evaluating Statutes. Circumstances strengthening or
weakening the effect of statutes may be classified as those af-
fecting its accuracy, and, to determine this, revisions should be
compared with session laws and sessions laws with legislative
records; those affecting its constitutionality, and for this
various headings, like due process of law, commerce, etc.,
should be examined; those concerning subsequent legislation,
superseding, repealing, or amending the statute ; and those
concerning constructions already made by decisions of courts.

Abstracting a Case. Both the student in preparing cases for
report in the classroom and the practitioner in preparing cases
for presentation in the courtroom should make careful ab-
stracts of them. An abstract should contain the following
parts arranged in the order indicated:

1. The title, date, and place where the case is reported.

2. A statements of the facts of the case. In addition, if
the case is one which the student is studying in a procedural
course, or if the point involved in the practitioner’s case is
a procedural point, there should be a statement of the man-
ner in which the issue, or issues, were presented to the trial
court, the disposition of the case made by the trial court,
and the manner in which the case came before the appellate
court if an appeal case.

3. A statement of the question, or questions, of substantive
law involved in the facts. If the case involves procedural
points or is being studied in procedural courses, the procedural
questions should be stated.

4. The decision of the court deciding the case.

5. The reasons given by the court for the decision, that is,
the doctrines of the case.

6. Any dicta or explanatory matter of which the ab-
stractor desires to make a note.

Immediately following is given an illustration of how a case
should be abstracted :

Adams et al. v. Lindsell et al., 1 B. & Aid. 681, (1818)

The defendants offered by mail to sell the plaintiffs wool at a cer-
tain price, “receiving your answer in course of post”, but the de-
fendants misdirected their letter so that it was delivered to the plain-

228

Indiana University Studies

tiffs three days late. The plaintiffs mailed at once a letter agreeing
to accept the wool on the terms proposed; but the day before receiving
this letter, the defendants (thinking that the plaintiffs were not going
to accept because they had not heard from them in what they thought
the usual course of post), sold the wool to another, and refused to
deliver it to the plaintiffs on the ground that they had made no con-
tract with the plaintiffs because their offer had not been legally ac-
cepted. The plaintiffs then sued for breach of contract.

Was the plaintiffs’ letter a valid acceptance of defendants’ offer?

The court of King’s Bench held that it was a valid acceptance and
therefore that defendants were liable to the plaintiffs for the nondelivery
of the wool to them, because

1. As a matter of interpretation, the plaintiffs answered in the
course of post, because the delay in notification was due to the fault of
the defendants.

2. The acceptance took effect the moment it was despatched, be-
cause the agreement required for a consensual contract is an objective
agreement, not a subjective agreement, and there was an objective
agreement (or expression of assent) in this 'case, either

a. because the mail service may be regarded as the agent of the de-
fendants, carrying their offer to the plaintiffs and receiving the plain-
tiffs’ acceptance, so as to complete the agreement at that moment, on the
theory that notice to the agent is notice to the principal; or

b. because the offer of the defendants was an act which gave the
plaintiffs the power to create an agreement by the acceptance of their
conditional promise by despatching it by mail as the offer impliedly
authorized them to do.

When Jervis obtained a rule nisi for a new trial he in effect secured
an order to the adverse party to show cause why such relief should not
be granted, and when the court discharged the rule it denied the relief.
If the court had granted the relief prayed for it would have made the
rule absolute.

Qwere , Would the selling of the wool to other parties have amounted
to a revocation of the offer in any event?

CHAPTER XX
BRIEF MAKING

Preliminary Work. When a person has a long argument
to make, as a practitioner does in arguing a case before an
appellate court, he needs more than an abstract of a case.
He needs to have the abstracts of all the cases on his case
cards which he has not discarded as worthless for his pur-
poses ; memoranda of quotations from opinions, textbooks, and
legal periodicals; statistics in regard to economic and social
facts (and for a trial brief a preliminary examination of wit-
nesses) ; and a theory of his case in mind — all woven into a
connected argument enforced by references to his authorities.
The last work is brief making.119 A brief may be defined as
“any abstract or memorandum intended as a guide in the
trial (or argument) of a case”.

Kinds of Briefs. In England the brief is prepared by the
solicitor for the use of the barrister, and contains only such
matters as will indicate to the barrister the essential features
of the case which he is to try. This would include an abstract
of the pleadings, and an abstract of the evidence, together
with the names of the witnesses and their peculiarities. The
English brief tells what the case is, but does not argue it. In
the United States, there are two kinds of briefs: the trial
brief and the brief on appeal. The trial brief partakes some-
what of the nature of an English brief, but it goes further
and contains a memorandum of the facts and the law. The
brief on appeal is unlike both the trial brief and the English
brief. It is generally a skeleton of the argument on the law,
is prepared by the attorney who is to argue the case, and is
intended for the guidance of the court more than counsel,
whereas the English brief and trial brief are for the guid-
ance of counsel only.

Trial Brief. A trial brief is a complete memorandum of
one side of a lawsuit, prepared in an orderly way for the
guidance of a trial attorney, following as nearly as possible
the sequence of events which the trial is expected to follow,
and containing all the information necessary to enable him

119 Sunderland and Redfield, in Brief Making; Lawyers’ Cooperative Publishing Co.,
Law Books and their Use.

(229)

230

Indiana University Studies

properly to introduce his evidence in accordance with the is-
sues and his theory of the case and to present the law in sup-
port of that theory. It should, therefore, in addition to the
title of the case, contain:

1. A statement of the issues, or abstract of the pleadings ;

2. A schedule of the facts which must be proved to sup-
port the case;

3. A synopsis of the evidence — oral and documentary — to
be adduced by the various witnesses and papers with the
names of each;

4. A statement of the facts which the adversary must
prove in order to support his defense ;

5. The statute or statutes, if any, relied upon ;

6. The authorities in support of the attorney's theory of
the case, and those against the theory of his adversary;

7. Prayers for instructions that the court will be asked to
give the jury, each on a separate page.

The importance of the trial brief cannot be overemphasized.
It is too frequently neglected by United States trial attorneys.
It not only aids the attorney in the proper preparation of his
case for trial, but it helps him in the orderly conduct of the
same, prevents his omitting some important step in the heat
of the trial, and enables him to make a better impression upon
client, court, and other attorneys by his readiness to cite au-
thorities fully to sustain every contention which he may find
it necessary to make in connection with every phase of his
case. The trial brief may also be of use after the trial is
over in making motions for a new trial or in arrest of judg-
ment and in preparing a brief on appeal if any appeal is taken.

Brief on Appeal. A brief on appeal, or appeal brief, is a
complete memorandum of a legal controversy, for the guidance
of an appellate court, giving the facts out of which the con-
troversy arose, the decision of the lower court, the grounds
upon which a review is asked, and the reasons why the trial
court should be reversed or affirmed. The rules of the Su-
preme Court of the United States and of most state courts
prescribe the contents of a brief. In general they provide
that the brief shall contain : the title of the case, a preliminary
statement, a statement of facts, an assignments of errors, the
questions involved, the argument, and a conclusion.

Willis: Anglo-American Law

231

Title of the Case. The title of the case should name the
appellate court, the number of the case, the names and desig-
nation of the parties, and the name of the brief, whether fon
appellant or respondent.

Preliminary Statement. The preliminary statement should
show how the case comes before the appellate court and from
what court it is brought.

Statement of Facts. The statement of facts should be a
story, or bare outline, of the case, giving the leading con-
trolling facts, but no evidence, and the main contentions be-
tween the parties, in clear, concise, and absolutely accurate
language. If a knowledge of the pleadings is necessary a
synopsis of these should be given.

In complicated cases it may be well to precede the state-
ment of facts with a statement of the issues or questions of
law involved ; otherwise this statement should follow the speci-
fication of errors.

Assignment of Errors. The assignment, or specification* of
the errors which it is claimed the lower court has committed
should be made under an appropriate heading, each separately
stated in as few words as possible, and each separately num-
bered.

In some jurisdictions a formal assignment of errors must
be prepared and filed in the appellate court to give it juris-
diction, but this does not dispense with its repetition in the
brief.

Only such errors as have been made the basis of an assign-
ment of errors can be argued upon appeal, and none should
be alleged by the appellant except those which he believes the
appellate court will deem ground for reversal. He should not
allege errors of the trial court in excluding evidence if such
evidence was subsequently admitted, or that a fact was proved
by the wrong evidence if it was proved, or that incompetent,
irrelevant, or immaterial evidence was admitted if no injury
resulted, because judgment will be affirmed where the errors
complained of were not prejudicial, or where the appellate
court believes that the same result would have been reached
if no errors had been committed. It is not the business of
the appellant to educate the trial court but to obtain a re-
versal, if he believes that the trial court should be reversed.

232

Indiana University Studies

The Supreme Court of the United States requires that when
the error alleged is the admission or rejection of evidence the
specification of error must quote the full circumstances of the
evidence ; that if the error assigned is the charge of the court,
the exact language must be quoted; that if an instruction
granted or refused is complained of, the instruction must be
quoted.

Questions Involved. If not stated before the statement of
facts, the points, or questions to be decided, or questions of
law raised in the case, should be set forth, after the assign-
ment of errors, separately and numbered, in short, pithy
phrases. As few points as possible should be set forth, but,
if necessary, these can be subdivided into subheads. The best
arrangement is to put the strongest point first, the weakest in
the middle, and the next to the strongest last.

Argument. A point will not be considered unless a fair
effort is made to show that the court below was wrong. Hence
an attorney must argue every point which he cares to have
an appellate court consider. Counsel should not only show
the appellate court what the case is about and what the ques-
tions before it are, but they should aid the court in reaching
a correct conclusion. To do this they should produce the
legal principles which they believe applicable and show how
they should be applied to the facts in the case. All proposi-
tions of law should be supported by authorities, and stated
with the utmost fairness and accuracy. If textbooks are cited,
volume, page, paragraph, and edition should be given. The
full citation of a case should be given whenever mentioned.
Cases from other jurisdictions as well as his own should be
cited. To cite a digest is an unpardonable sin. If a statute
is relied upon, it should be inserted in full, unless too long,
when the particular portion involved should be included. The
argument should close with a clear, forceful summary, re-
peating the points and the reasons therefor.

If the questions involved are independent they should be
kept distinctly separate by the use of numerals. Separate
arguments frequently consist of a chain of propositions. A
brief should show the main propositions and the points within
a main proposition. This can be done both by the use of
numerals and letters and by the use of different kinds of type.

Willis: Anglo-American Law

233

Conclusion. A brief should close with a respectful sub-
mission of the case to the court, with a request for reversal or
affirmance, and with the name of counsel who appear on that
side.

Counsel should bear in mind that in a brief, as in diamonds,
it is quality not quantity that counts. They are not paid,
like fiction writers, at so much per word, but for the ideas
they can transmit to paper. This applies not only to the
argument but also to the statement of facts and of the ques-
tions involved. If the appellate court clearly understands the
facts and the questions the case may not need much argu-
ment. Accuracy in citation and in argument should be a
point of honor. The appellant should remember that upon
him rests the burden of convincing the appellate court that
reversible error was committed by the trial court, and that
he cannot do this by general assertions; he must call any
error to the attention of the court, point out why he thinks
it is error, and give his reasons for thinking so. The appellee
should correct any misstatements of facts in the appellant’s
brief, or if he has not had a chance to examine it state the
facts in his brief, and take up each point made by the appel-
lant in the order named, analyzing and if possible refuting
the authorities cited by him. A reply brief should be what
its name indicates, and not some of the argument which should
have been disclosed in the main brief. However, this does
not mean that the appellant should in his main brief anticipate
the arguments of his opponent. Both parties should remember
that verbosity is not appropriate in a brief ; they should leave
illustration and amplification for oral argument.

We have now set forth fairly completely the technical rules
for finding, reading, and briefing authorities — the oracles o^
the law — as they are found in the sibylline leaves of the
myriads of law books found in a well-equipped law library;
but we have said very little about the greatest rules which
should guide the lawyer here as everywhere else in his prac-
tice, and those are the moral rules of life. It is as important
for a lawyer to put character as to put intellect into his work.
In no profession are moral ideals and standards more im-
portant than in that profession whose almost Godlike work
is the administration of justice on earth. No attempt will be
made to set forth the moral rules of life as they apply to the

234

Indiana University Studies

work of the legal profession, as the intellectual rules have
been set forth ; but if the lawyer will remember that in prac-
ticing law he is not only earning a livelihood for himself and
family but that he is performing a high social service in
helping to prevent wrong social relations and to readjust
them so as to make them right after they have become wrong,
he will never offer his legal services for sale to the highest
bidder; nor place technicality above justice; nor do anything
else corrupt, untruthful, or unfair to obtain a victory for a
client or to make the future law of his country what it ought
not to be : but instead he will always try to find the best prin-
ciples that are to be found in the law books, to give the court
the arguments that he believes to be the best, and in every
way to do the best he can for his client, for society, and for
the law.

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VOL. XIII

June, 1926

THE PRESENT STATUS OF INTEGRAL EQUATIONS,
By Harold Thayer Davis, Assistant Professor of Mathematics,
Indiana University.

For Sale by the University Bookstore, Bloomington, Ind., Price 50 cents.

The Indiana University Studies are intended to furnish a
means for publishing some of the contributions to knowledge made
by instructors and advanced students of the University . The
Studies are continuously numbered i each number is paged inde-
pendently.

Entered as second-class matter, June 14, 1918, at the pos1>office at Bloomington, Ind„
under the act of August 24, 1912. The Indiana University Studies are published four
times a year, in March, June, September, and December, by Indiana University, from
the University Office, Bloomington, Ind.

Indiana University Studies'
Vol. XIII j

June, 1926

Study No. 70

THE PRESENT STATUS OF INTEGRAL EQUATIONS.
By Harold Thayer Davis, Assistant Professor of Mathematics,
Indiana University.

The Present Status of Integral Equations

By Harold Thayer Davis, Assistant Professor of Mathematics in
Indiana University.

1. Introduction. The development of the branch of mathe-
matics called “analysis’ ’ has centered in large measure around
problems which have arisen in connection with the solution of
functional equations. The most important class of such equations
and the first to be studied was very naturally that in which deriva-
tives of the unknown function appeared. But it must remain one
of the curiosities of the evolution of mathematical science that more
than two hundred years elapsed after the discovery of integral
calculus before functional equations involving the unknown function
under signs of integration were generally recognized as adding a
new chapter to analysis and a powerful tool to the hand of the
investigator in applied science.

Altho little more than a quarter of a century has passed since
the work of Volterra and Fredholm first called general attention to
integral equations, the development of the subject has been so rapid
and complete that these equations are already challenging the place
of differential equations in the work of applied science. It is
hazardous to predict, yet one cannot help but observe that in the
discontinuous behaviour of atomic radiation there is a serious threat
to those who must state all laws of physics by means of differential
equations. Thus Poincare, in discussing the theory of quanta
radiation, says :f “It is useless to remark how far removed this
concept is from our customary ideas, since the laws of physics will
no longer be susceptible of being expressed by means of differential
equations.”

The modern theory of integration is admirably adapted to the
treatment of the discontinuous behaviour of functions, and if differ-
ential equations shall ultimately prove unable to cope with the
modern theory of radiation, it is highly improbable that these laws
cannot be expressed by means of integral equations.

*Presented at the meeting of the Indiana section of the Mathematical Association of America,
May, 1925, at Bloomington.

fComptes Rendus, vol. 153 (1911) p. 1103.

(3)

4

Indiana University Studies

In order to indicate the progress of this new branch of analysis
and to show the broad scope of its problems, it would seem that a
short historical summary might be of value. The Bibliography at the
end will show that there are now plenty of technical treatises avail-
able for workers in this field, but because of the rapid development
of the subject and the numerous topics which it embraces, these must
all be limited in both content and point of view.

The admirable treatment of the history of integral equations
prepared by Professor H. Bateman for the British Association for the
Advancement of Science gives an exact and complete account of the
development of the subject up to 1910. In the present essay, there-
fore, the emphasis has been placed upon the extension and progress
of the theory since that time. Each year in the past quarter of a
century has seen important new developments, and the subject seems
to be an almost inexhaustible mine for research workers in mathe-
matics.

2. Classification of Equations. By an integral equation in its
general sense is meant any functional equation in which the unknown
function appears under one or more signs of integration, and by its
order the highest number of dimensions of any integral which occurs
in it. For example

f(x)

= J* cos xt u(t) dt, u(x) = f (x) + X j* (x -t)

u(t)

dt,

/*y x u(t)

dt,

° l/Z=t

are integral equations of first order in a single variable and

u(x,y) = f (x,y) + xf f log[(x - s)2 + (y - t)2] u(s,t) ds dt,

** s\. a.

is an integral equation of second order in two variables.

It is clear from the examples just given that further classification
is desirable; hence any equation in which the unknown function
enters to the first degree only has been called a linear integral
equation and all others non-linear integral equations.

Linear equations may be divided further into four classes for
convenience of reference altho it will be seen that the general
theory of the third class will include the first two and the general
theory of the second class will include the preceding one. Thus we
mean by a Volterra equation of first kind the following integral
equation,

Davis: Present Status of Integral Equations

5

f(x) = aJ* K(%t) u(t) dt,

a

(U

and by a Volterra equation of second kind ,

u(x) = f(x) + XI K(x,t) u(t) dt.

(2)

a

Similarly we may classify the equation

►b

f(x) = 4 K(x,t) u(t) dt

(3)

a

as a Fredholm equation of first kind and

•b

u(x) = f(x) + 4 K(x,t) u(t) dt

(4)

a

as a Fredholm equation of second kind.

We should note that the general theory of the Fredholm equation
will include that of the Volterra equation as well, since it is only
necessary in the Fredholm equation to choose a function which will
equal K(x,t) for t < x and which will be identically zero for t > x.
In the general case this introduces a line of singularities along t = x,
but functions of this type are not excluded in the theory.

D. Hilbert has suggested that the equation

h(x) u(x) = f (x) + > K(x,t) u(t) dt

should be called a Fredholm equation of third kind. But when h(x)
is different from zero for x taken between the limits a and b this
equation is no more general than (4). On the other hand, the case
where h(x) vanishes in the interval (a,b) corresponds to the case
where f(x) and K(x,t) of (4) have singularities in x and it seems
preferable to call it the singular Fredholm equation of second kind.
Under this name also equations are included in which at least one of
the limits of the integral is infinite. Similar remarks apply to
the Volterra case.

The third type of equation, characterized by the fact that the
limits of the integral are functions of x, might be properly named
after G. Andreoli, who first gave a general discussion of its properties.
It is obvious that the Andreoli equation

u(x) = f(x) + X

will include both the Fredholm and Volterra equations as special

cases.

6

Indiana University Studies

A fourth type of linear equation, first introduced by A. Kneser,
wlio derived it from certain problems in mechanics, has been generally
called the mixed integral equation. It is of the form

u(x) = 2 <Pi(x) u(y T f K(x, t) u(t) dt,
i = l J a

where Si , & , Sn are any distinct points in the interval (a,b).

Another class of functional equations that have considerable
importance in applied problems are those to which Volterra has given
the name of integro-differential equations. These in the general case
include the unknown function under one or more signs of integration
and as a derivative.

By a solution of an integral equation is meant a function which,
when substituted in the equation, reduces it to an identity.

3. Types of Kernels. To the function K(x,t) has been given
the name kernel (French, noyau; Italian, nucleo; German, Kern).
The quantity X is called the parameter of the equation.

Since the characteristics of solutions of integral equations
are largely determined from the characteristics of their kernels, it
has been found desirable to classify linear equations by means of
some of these important properties.

Thus by a symmetric kernel is meant one which has the property
K(x,t) : K(t,x)

and by a skew-symmetric kernel one in which we have
K(x,t) EE - K(t,x).

Two kernels are called orthogonal if they satisfy the two con-
ditions

/:

Ki(x,t) K2(t,y) dt = 0,

r

K2(x,t) Ki(t,y) dt = 0,

and semi-orthogonal if only one of these conditions is satisfied.

If a kernel is symmetric and possesses the additional property
that I > 0, where

K(x,y) h(x) li(y) dx dy,

no matter what function h(x) may be, provided only that it has an
integral square, then the kernel is called positive , and if I ^ 0,
it is called negative. If I > 0 or if I < 0, then the kernel is called
definite.

If K(x,y) is a symmetric kernel and if there exists no function
h(x) such that

Davis: Present Status of Integral Equations

7

j* K(x,t) h(t) dt — 0,

then K(x,y) is called a closed kernel .*

By a Schmidt kernel is meant one of the form A-(x) B(y) S(x,y)
where S(x,y) is a symmetric function and A(x) and B(y) are of one
sign in the rectangle A < x < B, a < y < b.

Kernels of the form

K(x,y) = SXi(x)Yi(y)
i = l

are called bilinear kernels .

4. The Origin of Integra! Equations-! The first phase in the
historical development of integral equations centered around the
question of the inversion of integrals. As early as the end of the
eighteenth century and with increasing frequency in the early part
of the next, problems presented themselves in differential equations,
mechanics, and other applied subjects in the form of equations of
the following type,

f(x) = J* K(x,t) u(t) dt,

where f(x) was a known function, u(t) a function to be determined
and S a path in the complex plane, usually the axis of reals.

The credit for the first example in this new calculus apparently
goes to Laplace,! who in 1782 studied the equation

f (x) = J* eXt u(t) dt

in connection with linear difference and differential equations.
Abel198 later employed this equation in the more general form

f(x,y,z,. . .

xu+yv-j-zp. .

e

<p(u,v,p, . . . ) du dv dp . . . ,

and developed a number of the fundamental properties of the Laplace
transformation, altho no general method for finding its solution is
indicated.

The work of Abel and Laplace has been the inspiration of a
number of memoirs on this type of equation. E. Borel§, for example,
has made it of fundamental importance in his theory of divergent

*We here exclude all null-functions, i.e. discontinuous functions which are zero except at the points
of a set of measure zero. Complete generality is not obtained in theorems on closed kernels. wit.hout
the, use of Lebesgue integrals;

fFor a comprehensive historical outline to 1910 consult H. Bateman, ref. 4. The author is greatly
indebted to this paper. In the pages that follow reference numbers refer to the titles listed in the
bibliography.

{Oeuvres, vol. 10, p. 235.

§Lecons sur les series divergentes, Paris (1901).

8

Indiana University Studies

series, and his summation formula is essentially a solution of the
Laplace equation when S is the real axis from 0 to °° . P. Humbert216
published results for a more general type of equation in which ext
is replaced by f(x,t), and J. R. Carson78 recently found an applica-
tion for the Laplace equation in the theory of electric circuits, in-
dicating its intimate connection with the operational calculus of
Heavyside. M. Lerch* in 1892 discussed the homogeneous case
where f(x) is identically zero and the integral is taken along the real
axis from zero to infinity.

We are also indebted to Laplace for the integral equation
f(x| = f tx_1 ll(t) dt,

J s

which Riemannf used in his classical researches on the distribution
of prime numbers and which is important in investigations on the law
of error. J. Liouville482 as early as 1837 considered the existence
theorem for the homogeneous problem

f x" u (x) dx = 0, n = 1, 2, 3, . . . .

J a

which is of importance in connection with the uniqueness of solutions
of the non-homogeneous equation. This equation was further studied
by C. Severini238 who made use of it in connection with the closure
property of orthogonal functions.488

After the work of Laplace one of the most noteworthy discoveries
in the history of integral equations in spite of its appearance so
early in the development of the theory was made by J. Fourier in his
memoir on the “Theorie du mouvement de la chaleur dans les corps
solides” which, altho crowned by the French Academy in 1812, was
not published until ten years later. Here for the first time appears
the integral equation

r

f(x) = I cos xt u(t) dt,

and, with proper restrictions on f(x)t, the remarkable inversion
formula

2 /•<*>

u(t) = — I cos xt f(x) dx.

X J o

To enumerate the various researches to which these equations
have led would be to review a large chapter in modern mathematics,

♦Acta Math., vol. 27 (1903), pp. 339-351.
vol. 1, no. 33.

fWerke (Weber), Leipzig (1892), p. 149.

tFor example,

/:

f f (x) I dx c

First published, Rozpravy ceske Akadamie, 2d class,

Davis: Present Status of Integral Equations

9

but perhaps the most important generalization for which they are
responsible is the theory of the Fredholm equation of first kind.

To Abel198 belongs the credit for having given in 1823 the first
solution of the equation now known by his name,

/x u(t)

dt a < 1.

c (x-t)a

The inversion formula,

sina- d /»x f(t)

u(t). = — I dt,

x dx ^ c (x -t)l “a

is one of the best known results of the early period in integral
equations and has led to a number of generalizations and applica-
tions. It is closely connected with Riemann’s operator for fractional
differentiation and integration.79’ 81 The equation had been
previously obtained, tho not solved, by 8. Poisson* in the problem of
the distribution of temperature in a conducting sphere, and J.
Liouvillef in 1832 connected it with his theory of fractional deriva-
tives. Three years later and independently of Abel he also gave a
solution of the equation in the form in which it appeared in the work
of Poisson. J A general treatment of the problem was given by R.
Murphy in 1833, who studied it in connection with questions in
electrostatics! .

At about this same time both Liouville and Poisson were led to
another problem which represented a real generalization of that of
the inversion of an integral. In 1826 Poisson|| obtained an equation
of the form

4xk fx

g(x) = u (x) - I f'.(x -t) ii (t) dt,

3 " o

which he succeeded in solving by expanding u(t) in powers of the para-
meter k. The convergence of the resulting series was not established
until later.

Altho J. Gaque in 1864^f introduced integral equations into the
discussion of a method for solving linear differential equations, and
other investigators in applied fields incidentally found themselves
confronted by the necessity of determining an unknown function
under a sign of integration, it was apparently not recognized before
1888 that these functional equations presented a new problem in
analysis which was worth a systematic study of its own. In that

"Journal de 1’ccole polytechnique, (1821, vol. 19), p. 299.
tlbid. (1823, vol. 21), p. 9.
tlbid. (1835, vol. 24), pp. 55-60.

§Cambr. Phil. Trans, vol. 5 (1833), pp. 113-148, 315-394.

IlMemoire sur la theorie du magnetisme en mouvement. Oeuvres, vol. 3, no. 5, pp. 41-72.
‘iMethode nouvelle pour 1’ integration des equations cliff erentielles lineaires. Journal de math.,
vol. 29 (1864), pp. 185-222.

2-36790

10

Indiana University Studies

year, while discussing Laplace’s differential equation, P.v du Bois-
Reymond* reduced his problem to one in integral equations and then
made the following remark:

I write down these equations not as if they solve the problem or even
carry it nearer to a solution; they serve only as examples of the fact that in
the boundary value problem of linear partial differential equations one is
continually faced by this type of problem which still, for the analysis of today,
presents in general insurmountable difficulties. I propose to give to these
very useful problems the name of integral equations.

5. The Modern Development. With V. Volterra, T. Levi-
Civita, and J. Le Roux begins the modern development of integral
equations which has made such rapid strides under the impetus of
their work. Le Roux221 in 1895 gave a solution of the equation

c

with certain restrictions on the kernel, obtaining his results by
means of successive approximations.

The same year Levi-Civita222 considered the case of the solution
of both the Fredholm and Volterra equations of first kind with a
kernel of the form K(x — y). In the latter case he obtained the
elegant result that, with proper restrictions on the kernel and the
known function, the solution is of the form,

where we have

o

Altho Volterraf eleven years before had commenced his study
of integral equations, his work did not mature before 1896 when, in
a series of papers celebrated both for the completeness with which
they discharged the problem and the novelty of the methods em-
ployed, he gave the first general treatment of the problem of inversion
of integrals.251’ 252 It appears to have been Volterra who, in these
memoirs, first pointed out the remarkable connection which exists
between the theories of linear algebraic and linear functional equa-
tions. Altho Sturm in his great memoir of 1836 in the first volume
of Liouville’s Journal was led to some of the results on the properties
of solutions of a linear differential equation by considering the
limiting form taken by the solution of a difference equation

L u “ +M u + N it = 0, (i -= 0, 1, 2,. . . .)
i i-f-1 i i i i — 1.

*Journal fur Mathematik, vol. 103 (1888), p. 228.

fSopra un problema di elettrostatica, Atti dei Lineei, vol. 8 (3), (1884), pp. 315-318.

Davis: Present Status of Integral Equations 11

which is essentially a system of linear equations, no elaboration of
the method appears anywhere in his published work.

In Volterra’s words the following principle seems to underlie
the theory of both linear functional and linear algebraic equations :*

To any problem, algebraic or differential, whose solution leads to a
function expressed as the quotient of entire functions of a certain number of
variables, there corresponds an integral or integro-differential problem whose
solution is wholly expressed by means of the quotient of entire functions of the
same variables. Two such problems are called correlative and it is possible to
pass from the solution of one to that of the other.

Thus the integral equation

u(x) = f(x) + r K(x,t) u(t) dt,
o

can be thought of as the limiting form of the equation

u (x) =• f(x) + S K(x, qj u(q) Ail (5)

i = i

as n — > oo ; where the ti are n equally spaced points in the interval
(0,x), t = 0, t = x, and A- = t. - t. .

In a similar way equation (5) may be thought of as the limiting
form of a system of algebraic equations

I- 1

u(tj) = f(tj) + 2 K(tj, q) u.(tj) Mb (j = 1, 2, . . .n)

i = l

for which a solution exists of the form

u(tj) = f(tj) + 2 k(q, q) f(q) Ai, (j = 1, 2, . . , n).

i = l

By considering the value of this solution as n — *- °o f Volterra was
able to determine a limiting form for k (tj,ti) and thru it arrived
heuristically at a function u(x). That this was a solution of the
original integral equation he was able to show by direct substitution.

R. D. Carmichael f has recently examined in detail this method
of arriving at solutions of transcendental problems thru the limiting-
form of algebraic systems and has indicated its scope and power
by deriving oscillation, comparison, and expansion theorems for
various types of functional equations.

It was I. Fredholm who first used this new tool in the integral
equation which bears his name. { The first of these papers appeared
in 1900 under the title : “Sur un nou velle methode pour la resolution

*Ref. 292, p. 84.

fAlgebraic Guides to Transcendental Problems. Bull. Amer. Math. Soc., vol. 28 (1922), pp.
179-210.

tit is interesting to note that Fredholm himself proposed the name “equation fonctionnelle
abelienne’’ for the equation of first kind. Ref. 137, p. 365.

12

Indiana University Studies

du probleme de Dirichlet”34 and was followed three years later by an
elaboration of these results in a second memoir: “Sur une classe
d’equations fonctionnelles” which is now classic in the theory of the
Fredholm equation.137 The equation solved by Fredholm presented a
difficulty which did not appear in Volterra’s problem since, in the
former case, the determinant of the algebraic system was not always
different from zero and required, necessarily, that the limiting form
of the solution should be a meromorphic function of the parameter.
Thus the solution of the Fredholm equation (4) appeared in the form

f(t) dt

where D(x,t;x), called Fredholm’s first minor, and D(x), called
Fredholm’s determinant, are entire functions of X.

It was Fredholm’s notable discovery that corresponding to those
values Xi, the so called characteristic values of the equation, for
which D(x) -= 0, there existed solutions of the homogeneous equation
and these solutions were actually D(x,t;Xi). In a paper of consider-
able elegance L. Tocchi169 has shown that D(x,t;Xi) can always be
factored into two factors v(x) w(t) so that the extra parameter is a
parameter only in appearance. The results of both Fredholm and
Tocchi are readily extended to the case where D(x) = 0 has multiple
roots.*

The proof of the convergence of the X — series representation for
D(x) which Fredholm obtained depended essentially upon a theorem
due to J. Hadamard on the maximum value of a determinant.280
This theorem has played an important part in much of the work
involving infinite determinants, and a number of independent prccfs
have been given for it.

Shortly after the appearance of the Fredholm papers^ D. Hilbert
commenced the publication of a series of memoirs in the Gottinger
Nachrichten on the “Foundations of a General Theory of Integral
Equations. ’ ’ The first of these appeared in 1 904 and the last in 1 9 1 0. 9
One of the most noteworthy achievements of these papers was the
formulation of the Sturm-Liouville boundary value problem of
differential equations in terms of integral equations and another the
remarkable connection established between integral equations and
bilinear and quadratic forms in an infinite number of variables. This
subject was extensively developed by M. Mason273 in his thesis pub-
lished in 1903.

One of the important extensions of the work of Hilbert in con-
nection with the Green’s functions of differential equation systems

*See Heywood-Frecbet: L’equation de Fredholm, ref. 8, footnote p. 73.

Davis: Present Status of Integral Equations 13

was due to G. D. Birkhoff.89 In a paper published in 1908 Birkhoff
discussed for a very general case the existence and distribution of
characteristic numbers and the nature of the expansion of an arbitrary
function in terms of the associated system of bi-orthogonal functions.
This memoir has already become ' a classic . in connection with the
Sturm-Liouville problem.

The papers of Voiterra, Fredholm, and Hilbert now gave new
stimulus to the study of infinite determinants and systems of
equations in an infinite number of variables which had already been
advanced a long way, notably by G. W. Hill, P; Appell, H. Poincare,
and H. Von Koch. To this theory important additions have been
made by D. Hilbert, E. Schmidt, H. Hellinger, 0. Toeplitz, E. Hilb,
F. Riesz, and more recently by J. V. Walsh.* For an extended
account of the development of this important subject and its
numerous applications the reader is referred to the monograph of
Riesz. f

With the completion of the fundamental theorems in the theory
of both the Voiterra and Fredholm equation, attention was next
directed to a study of the characteristics of solutions as they depend
upon the characteristics of the kernel and the development of arbi-
trary functions in series of the orthogonal and bi-orthogonal functions
which furnish solutions of the homogeneous Fredholm equation.

The latter problem, frequently met with in applied mathematics,
is that of developing an arbitrary function in terms of a system of
functions, orthogonal in an interval (ab), i. e. functions

ll! (x), u2 (x), , Un (x), ....

which satisfy the condition

/:

Ui (t) Uj (t) dt = 0, i % j.

In a formal manner it may be assumed that an arbitrary function,
f(x), can be expanded in terms of these functions

f(x) = CiUi(x) + c2u2(x) + .....+ cnun(x) + (6)

and the coefficients calculated from the equation

/:

f(t) Ui (t)

Various questions suggest themselves in this connection, however.
First: can f(x) really be represented by series (6)? Second: to what
extent does the series converge? Third: is the representation of a
function by means of series (6), if it exists, unique? Fourth: is

*Amer. Journal of Math., vol. 42 (1920), pp. 91-96. 1

fLes systemes d’ equations lineaires a une infinite dunconnues. Gauthier-Villars, Paris (1913)

182 pp.

3-36790

14

Indiana University Studies

the function f(x) which corresponds to an arbitrary set of coefficients,
Ci, c2, . . . . , cn, . . . , unique?

* Altho these questions have been the subject of numerous in-
vestigations since the work of Fourier, Sturm and Liouville first
brought the problem to the attention of mathematicians early in the
nineteenth century, E. Schmidt428 in his dissertation in 1905 opened
up a new and fruitful field of investigation in this direction. In his
theory of orthogonal and bi-orthogonal systems of functions connected
with integral equations and his development of the properties of an
equation with a symmetric kernel, he has set up a model which has
guided investigators to some of the most elegant theorems in the
subject. The work of Mrs. Pell369 on bi-orthogonal functions, and
that of M. Plancherel,424 A. Kneser,413 W. Myller-Lebedeff,421 and
H. Weyl430 on various representations of arbitrary functions should be
especially mentioned.

Closely associated with this line of research is the Fischer-
Riesz theorem, independently discovered by E. . Fischer364 and F.
Riesz373 in 1907, which is fundamental in the theory of the closure
properties of the kernel of the Fredholm equation of first kind. In
this connection, also, we should mention the existence theorem for the
homogeneous equation of first kind which has been, in particular, the
subject of investigations by G. Lauricella219 and C. Severini239.

After the problem of the inversion of indefinite integrals had
been brought to so successful a solution by Volterra, and with the
work of Schmidt to serve as a guide, it was natural to expect develop-
ments next in the theory of the Fredholm equation of first kind.
Altho there had been previous contributions to the subject in the
form of isolated examples, the real foundation was laid by E. Picard
in a series of articles the first of which appeared in 1909. 228, 60
The names of L. Amoroso,201 G. Lauricella,219 and A. Verger io246 are
among the important contributors to the recent theory of this
equation.

From about 1907 the number of memoirs on integral equations
rapidly increased. Different . types of kernel were studied, and
specific solutions for a number of equations important in practice
were recorded. In this connection the papers of H. Bateman and
G. H. Hardy made noteworthy contributions. J. Mercer196 did
fundamental work with functions of positive and negative type and
showed how the classical theorems on definite quadratic forms have
important generalizations in the theory of integral equations.

E. Goursat139 and H. Lebesgue151 developed the Fredholm theory
for bilinear kernels. The former gave a preliminary discussion of the
subject and the latter extended it to the limiting case where the

Davis: Present Status of Integral Equations 15

kernel was assumed to be a bilinear form in an infinite number of
variables. _

It may be shown that the genre of the Fredholm determinant
D(x) is at most one for the case of continuous kernels.162 It is
important to notice that, for finite bilinear kernels, the genre is
zero since D(x) reduces to a polynomial.

6. Generalizations. Generalizations of many kinds followed.
E. Schmidt,358 T. Lalesco,287 A. Vergerio,359 and G. Bratu349 studied
inclusive types of non-linear equations and stated existence theorems
with more or less generality.

In his work on the non-linear problem, Schmidt studied equations
of the form

u(x) + p K (x,t) u(t) dt + s fX . Jn~ ‘K(x,t„ u, . . tn) u(t,)ai
h(tt)Pl . u(tn^fh(tn)gndt1 . .dtn = 0,

where the sum is extended over a set of integral values «i, pi,
one at least of which is assumed to be different from zero.

Lalesco’s equation was similar in character, involving powers of
the unknown function under the integral sign. Thus he considered
existence theorems for the equation,

u(x) = f(x) + f [K1(x,t)u(t)+K2(x,t)u2(t) + +Kn(x,t) un(t)] dt.

J o

Vergerio introduced the notion of linear operators into his
equation which he wrote in the form,

u(x) = f(x) + X f K(x,t) L(u) dt.

*■ a

where L( ) designates a general operator satisfying the linearity
conditions :

L(u + v) =• L(u) + L(v),
c L(u) = L(cu).*

Bratu, while considering very general types of non-linear equa-
tions, also made fundamental contributions to the study of the
important special cases

u(x) = f(x) + X f K(x,t) u2 (t) dt,

J o

and

u(x) = f(x) + X f K(x,t) eu(t) dt.

J o

*The degree of generality of this equation can be readily appreciated from the work of S. Pincherle
and C. Bo nr let who have shown that L(u) is equivalent to a differential operator of infinite order.
Pincherle: Memoire sur le calcul fonctionnel distributif. Math. Annalen, vol. 49 (1897), pp. 325-381;
Bourlet: Sur les operations en general et les equations differentielles lineaires d’ordre infini. Annales
de l’ecole normale superieure, 3d ser., vol. 14 (1897), pp. 133-190.

16

Indiana University Studies

One of the most general functional equations involving integrals
that has appeared in the literature is due to H. Galajikian,353 who has
made some progress in the existence theorem for the equation

u(x) - g(x, 9J, <p2),

where <pi = J* h txA u(t)J dt.

However, in a problem of this generality, the structure of the
theorems has become so tenuous, that they are of little value in
applied mathematics. Much important work, however, remains
to be done in the case of special equations and the nature of these
problems might profitably be indicated by the functional equations
that arise in application.

A. Kneser,342 W. A. Hurwitz,341 and G. Andreoli338 are responsible
for the development of the theory of the mixed integral equations
(called by Kneser “belastete integralgleichungen”) and the latter has
shown how it can be included under the theory of the general
Fredholm equation if certain singularities are introduced into the
kernel. In an important memoir which appeared in 1914 and in
subsequent shorter papers, Andreoli has developed many of the
properties of the general equation associated with his name.336

Several special kinds of equations which involve the unknown
function under signs of integration have been studied in addition to
the standard types already mentioned. A few of these and the
names of those chiefly responsible for their development are tabulated
below.*

Equations

u(x) = f(x) + S hi(x)u(i)(x)+ 2 fb Ki (x,t)u«)(t)dt

; = 1 i = n J n

Authors

E. Bounitzky, U. Crudeli
G. Fubini, J. Horn, G.
Lauricella, S. Pincherle,
C. Platrier.

P. J. Browne.

E. Cesaro.

h(x)u(ax) = f(x)-fxng(x)+X f K(x,t)u(xt)dt

^ a

g(0) =*= 0, h(0) = c.

u(x) = f(x) + -

j/ x'

r:

u(x

1

■-)

t2

: dt

|/x

P. Nalli, C. Popovici. u(x) = A[g(x) u(ax) + f N(x,t) u(t) dt -j-

~ o

/»ax

I P(x,t) u(t) dt] + f(x)

J o

r° 0

f(x) = I u(t) u(x -t) dt.

J _00

G. Polya, C. Runge.

""For references see Bibliography, X.

Davis: Present Status of Integral Equations 17

The first of these equations will be seen to be an example of the
type which Volterra classified under the name of int egro-diff&r ent i al
equations. Important extensions, suggested by problems in elas-
ticity, hereditary mechanics, electrodynamics, etc., have been made
by Volterra325 in the form of equations in several variables, as for
example,

d2u(t) d2u(t) d2u(t) /»t d2u(s)

1 j 1_ I s q (t>s) ds = f(x,y,x,t)'

. dx2 dy2 dz2 • o ax2

a2u(s) a2u(s)

where u(t) EE u(x,y,z,t) and S fx (t,s) = fi (t,s)

dx2 dx2

52u(s) <32u(s)

d f 2 (t,s) H — f 3 (t.s).

dy 2 dz 2

In the exploration of this field the Italians, under the stimulus
of Volterra, have taken a leading part.

Another development closely connected with the subject of
functional equations in general, and integral equations in particular,
is that which has arisen from the idea of “functions of lines.” This
line of thought was first set forth by Volterra in 1887 in a paper
under the title “Sulle funzioni che dipendono da altre funzioni”*
and has reached maturity in a volume published in 1913. 191 In
Volterra’s words the idea may be explained as follows :f

An ancient problem, that of Zenodorus, has been to find among the plane
curves of given length that which encloses the largest area. Now, if we study
this isoperimetric problem and regard a plane area as depending upon the
curve which encloses it, we have a quantity which depends upon the form of a
curve, or, as we say today, a function of a line. Since a line is able to be repre-
sented by an ordinary function, the area can be regarded as a quantity which
depends upon all the values of a function. It is evidently a function of an
infinite number of variables. In fact, we are able to look upon it as the limiting
case of a function of several variables by supposing that their number increases
without limit, in the same way as a curve can be regarded as the limiting case
of a polygon whose number of sides increases to infinity.

In the analytical treatment of problems involving functions of
lines, as for example elastic and magnetic hysteresis, Volterra was
led in general to integral and integr o-diff er ential equations.

T. Lalesco in 1908 made an original contribution to integral
equations which deserves special mention. In the second part of his
thesis, “Sur Y equation de Volterra”287 which appeared in the Journal
de Mathematique, he has pointed out the connection existing between
integral equations and differential equations of infinite order.

*Atti dei Lincei (18871, (2), pp. 97-105, 141-146, 153-158.
tRef. 191, p. 14.

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Indiana University Studies

This idea was not entirely a novel one since Pincherle and
Bourl^t* in 1897 had shown that the inversion of a linear functional
operator led to the integration of a differential equation of in-
finite order. However, no use of the idea was made until Lalesco’s
paper established its connection with integral equations. Thus he
considered a Yolterra equation of first kind (1) with a kernel devel-
opable in the following series:

(t -x) (t — x)n

K(x,t) = aQ(t) + ai(t) (- + an(t)

1! n!

Assuming that lim f(n)(x) = F(x) existed, Lalesco showed that

n — »- 00

equation (1) could be replaced by a differential equation of infinite
order :

„JToo{[a0(x) u(x)]'") -[a1(x)u(x)](n-1)+. . . . + ( -l)"[an(x) u(x)]}= F(x),

with initial conditions on u(x) and its derivatives determined from
an auxiliary infinite system of linear equations in an infinite number
of unknowns.

The ideas developed in this paper were later extended to include
equations of Fredholm type289 and. to the closely related subject of
integral equations of infinite order,288 i.e. equations of the form,

u(x) + ai (x) f u(t) dt + a2 (x) f u(t) dt2 + = F(x).

J 1 J 2

This new method in integral equations lay dormant, however,
until 1918 when, in an extensive paper, F. Schiirer291 elaborated the
ideas of Pincherle, Bourlet, and Lalesco and applied them to an
extended class of functional equations. This paper was the starting-
point for a series of papers by E. Hilbf and 0. Perron J which con-
sidered the integration of special types of equations and their
application to the solution of linear difference equations.

Hilb introduced the novel idea of connecting the solution of a
differential equation of infinite order with the solution of a set of
equations in an infinite number of variables. Thus he derived a
linear system by means of an infinite number of differentiations of the
original equation and then made use of the methods of the Hilbert-
Schmidt theory to obtain a solution. This method of attack has
been employed by H. T. Davis286 in discussing the Euler differential
equation of infinite order which is associated with various types of
singular integral equations.

*Loc. cit. See Bourlet’s memoir, p. 178.

fMathematische Annalen, vol. 82 (1920-21), pp. 1-39; vol. 84 (1921), pp. 16-30, 43-52; vol. 85 (1922),
pp. 89-98.

Jlbid., vol. 84, pp. 31-42.

Davis: Present Status of Integral Equations 19

Generalizations of the integral equation problem were made in
another direction by extending the definition of integration to in-
clude the integrals of Stieltjes and Lebesgue. With this work a,re
associated the names of G. C. Evans, E. W. Hobson, E. E. Levi,
W. H. and Grace C. Young and more recently C. A. Fischer.*

The postulational foundations of the theory of integral equations
was examined by E. H. Moore75 in 1910 and the methods of general
analysis used to describe the basic principles which underlie the
theory. To quote Professor Moore:

The existence of analogies between central features of various theories
implies the existence of a general theory which underlies the particular theories
and unifies them with respect to those central features.

In this characterization the property of linearity plays an essential
role.

Another somewhat similar generalization of the problem of
integral equations is found in the calculus of permutable functions and
functions of composition.

Two continuous functions Kx(x,y), K2(x,y) are called permutable
if they satisfy the relation:

Ki (x,t) K2 (t,y) dt = r K2 (x,t) Ki (t,y) dt.

X X

The preceding operation is called the composition of the two
functions, and the resulting function a function of composition.

Such functions were first studied by Volterra in connection with
the solution of the Volterra equation of second kind. Thus he showed
that the solution of equation (2) can be written in the form

u(x) = f(x) + X I f(t) k(x,t) dt,

where we have made the abbreviations,

k(x,y) = Ki (x,y) + X K2 (x,y) + X2K3 (x,y) +

and

The fundamental theorem which states that if K(x,t) is inte-
grable over the triangle a < t < x < b, we shall have

for all values of i less than n, shows that Ki(x,y) and Kn-i(x,y) are
permutable. The function k(x,y) belongs to the class of functions
of composition.

*See ref. XIX of the Bibliography.

20

Indiana University Studies

Volterra used permutable functions in a problem in integro-
differential equations in 1910, 394 and in a set of lectures delivered
at Rice Institute in 1919490 he formulated a calculus of such functions
whose application extended far beyond the linear equation which
suggested it.

For an elegant exposition and correlation of these various gen-
eralizations the reader is referred to the Cambridge Colloquium
lectures of G. C. Evans delivered to the American Mathematical
Society in 1916.*

Another natural development in the theory arose from the
problem presented by the singular integral equation. The ordinary
methods of Volterra and Fredholm were found inadequate to solve
various problems which naturally arose and to explain curious
phenomena which appeared in them. As early as 1896, W. Wirt-
ingerf had pointed out the existence of band spectra, or lines of values
of the characteristic parameter for which there existed solutions of a
differential equation with linear boundary conditions. This theory
was investigated from the standpoint of integral equations by
Hilbert in 19069 and its application extended to differential equations
by E. Hilb,479 M. Plancherel,424 and H. Weyl.t E. Hellinger in
1909§ extended Hilbert’s work by considering the point and band
spectra of a general quadratic form.

Important contributions to the subject of the singular equation
of Volterra type were made by G. C. Evans436 in a series of papers
which appeared from 1909 to 1911 in which existence theorems were
stated with considerable generality for various kinds of kernels.
E. Picard448 performed a similar service for the Fredholm equation,
and the case of the Volterra equation of first kind was treated in
an elegant manner by the combined work of V. Volterra, E.
Holmgren,213 T. Lalesco,287 and J. Horn.215 The work of the latter
was devoted to a problem in the inversion of integrals which is
analogous to the problem presented by differential equations with
irregular singular points.

In spite of the researches in this direction, however, the pos-
sibilities of the singular equation are still far from exhausted. In
most of this work special kinds of solutions are specified in advance,
and as these restrictions are removed, new and novel diffculties

*Functionals and their Applications. Selected Topics, including Integral Equations. Cambridge
Colloquium Lectures. Amer. Math. Soc. (1918).

fMath. Annalen, vol. 48 (1896), p. 387.

JUber gewohnliche Differentialgleichungen mit Singularitaten und die zugehorigen Entwicklungen
willkurlicher Funktionen. Math. Annalen, vol. 68 (1910), pp. 220-269.

§Neue Begriindung der Theorie quadratischer Formen von unendlichvielen Veranderlichen.
Journal fur Math., vol. 136 (1909), pp. 210-271.

Davis: Present Status of Integral Equations 21

present themselves. In his work on the potential problem where
corner points are admitted in the boundary of the region, 0. D.
Kellogg443 found that the Fredholm series failed to converge and the
singular equation had to be examined by a different method. Inte-
grals in which Cauchy’s principal value was used were studied in
this connection by Kellogg and Hilbert. A general theory of
inversion formulas connected with integrals of which the principal
value must be taken has been given by G. H. Hardy.302 H. Villat,298
in a memoir which appeared in 1916, studied the Fredholm equation
with singular kernel from this point of view.

The theory of integral equation has been greatly broadened by
work which has been done in connection with the analytic integral
equation ,

r P(x,t)

u(x) = f(x) + I n.(t) dt, (7)

J s N (x,t)

where P(x,t) and N(x,t) are functions analytic in two complex
variables in the regions R and H' , f(x) is a function analytic in R
except for a finite number of poles, and S is some path of integration
between two fixed points a and (3 in Rb In particular a and p may
coincide and the path of integration be a circuit as in Cauchy’s
formula, or the path may be composed of one or more loop circuits.

1

It is interesting to note that if the kernel is and S is a

1 t-x

circuit about x, then X = — is a characteristic value for the

2xi

homogeneous equation, corresponding to which any analytic function
of x is a solution. The analytic case of the Fredholm equation is
clearly included in equation (7) when «' and p are real and the path of
integration is the real axis.

Important investigations have been made for the analytic
equation by E. Picard,258 and D. Pompeiu.297 In a recent article
G. Julia294 has applied ideas of Hermite to obtain further insight
into the character of its solutions.

The numerical solution of integral equations has not been
neglected altho, with increasing use, there is need for greater
development along this line. F. L. Hitchcock and E. T. Whittaker
(see section XXIII of the Bibliography) have contributed methods of
attack. Hitchcock’s method applies to a Fredholm equation with
inter yal (0,1), while Whittaker considers Volterra equations of
first and second kinds for kernels of the form K(x— t). In the

n

equation of first kind he considers the case where K(x) = x_p 2 anxn,

n=l

0 < p < 1, and for the equation of second kind he develops the

4-36790

22

Indiana University Studies

theory for kernels expansible in a power series and also of the

form K(x)= 1 an ePnX.
n = 1

7. Applications. Side by side with the purely theoretical
studies of integral equations, we find an ever growing number of
memoirs devoted to the application of these equations to applied
problems. We have already indicated how integral equations pre-
sented themselves early and naturally in connection with differential
equations of mathematical physics. Consequently, after the solutions
of Volterra and Fredholm appeared, the dilemma of Du Bois-
Reymond no longer existed, and to change a problem from a differ-
ential equation to an integral equation was to bring it under a theory
rich in new methods and results.

The general tendency in the study of an applied problem has
been to continue to use the methods of the pioneers. The physical
situation is first formulated as a differential equation, the problem then
converted by means of a Green’s function to one in integral equations,
and the resulting equation used as a bridge to the solution. But in
his study of the kinetic theory of gases, D. Hilbert44 has taken a
more fundamental point of view. He goes directly from the physical
.problem to an integral equation and asserts, further, that this direct
use of integral equations is essential in the foundation of the theory.
He says, in part:*

In all of the applications of the theory of integral equations which we have
discussed up to the present time — wdiether they were analytic or geometric
problems or problems in the field of theoretical physics — there was always an
ordinary or partial differential equation or a system of such differential
equations which served us by intervention in setting up the integral equation.
In the following I make a new, direct application of the theory of integral
equations, for I show that there is a certain linear integral equation of second
kind with symmetric kernel which forms the mathematical foundation of the
kinetic theory of gases and without whose investigation according to the
modern methods of the theory of integral equations a systematic foundation
of the theory of gases is impossible.

Further extensions of this idea should be looked for in the
future application of integral equations. The concept of ‘‘rate of
change” is fundamental both in differential equations and in the
relations between the physical properties of matter, so that it has
been natural to express physical laws by means of derivatives. But
the notion of “summation” seems to be just as fundamental' in a
study of the phenomena of nature, so that we would naturally
expect to be able to pass from a physical problem to one in integral

*Ref. 9, p. 267.

Davis: Present Status of Integral Equations 2,-

equations as easily as we formulate the same problem in a differential
equation with boundary condition.

Thus we might study the problem of kinematics in the spirit of
Volterra and Fredholm as follows:

Let us designate by u(t) the distance passed over by a moving
particle after a lapse of t seconds. Dividing the time interval into
n parts,; Ab, during each one of which the velocity, v(t), is approxi-
mately constant, we shall have as an approximation to u(t), the sum,

un(t) = S v(b) Ah-

i — 1

As n increases indefinitely the sum may be replaced by the
integral,

u (t) = S dt'

A

Supposing the particle to have an initial displacement uQ at
t = t0 we can replace (8) by the more general formula:

u(t) = u0 + J* v(t) dt. (9)

A

By a similar argument v(t) can be calculated in terms of a
variable acceleration a (t),

v(t) = v0 + J a(t) dt. (10)

to

Combining (9) and (10), we shall have

u(t) = UG + vQ(t - tp) + J (t - s) a (s) ds. (11)

to

The application of equation (11) is easily shown in the problem
of the simple pendulum.

The displacement, u, of the bob, P, in terms

of 6 is

u = L 6.

The acceleration effective in the motion of
the pendulum is

a g sin 0 .

Let us suppose an initial displacement of uo=L0,

24

Indiana University Studies

and an initial velocity Lo0- Then from (11) we shall have
0(t) = 60 + «0t - X f (t -s) sin 0(s) ds, X = g/L.

J o

This integral equation, is non-linear, but could be solved by
methods already existing in the literature. Assuming, however,
that for small values of 0, sin 6 may be replaced by 6, we shall have
a Volterra equation of second kind,

0(t) = 0Q + Wot - X f (t - s) 0(s) ds.

J o

The resolvent kernel, for this equation is easily calculated to be
k(t,s) = sin Vx (t -s),

Vx

so that the solution appears in the form,

0(t) = + wo t - Vx f sinVx (t -s) (0 + wos) ds,

J o

Vxel + <ol _ _ Vx«„

sin (V X t + 7), where 7 = arc sin— — .

Vx V x»j +

We have already indicated how Fredholm was led to his dis-
coveries from a study of the Dirichlet problem in the theory of
potential functions. This problem may be briefly stated as follows:

Along a curve C, enclosing a region S, a continuous function f(s)
is given. A function u(x,y) is sought which, together with its
partial derivatives of first and second orders, is continuous within the
region S and satisfies Laplace’s equation

d2U d2ll
— + — = 0,
dx2 dy2

and upon the boundary C, assumes the given value f(s). The
existence and uniqueness of a solution for this problem are the
essential points.

The associated Neumann problem is that of finding a function
v(x,y), satisfying the same conditions as u(x,y) with the exception
of the last one, which is replaced by the condition that the normal
derivative along C shall assume the given value f(s).

Complexities arise when the character of the curve C is modified
and we have already mentioned the investigations of Kellogg and
Hilbert in connection with curves admitting corner points. G. Bert-
rand,26 G. Lauricella,50 P. Levy,51 E. Picard,57 J. Horn,10 H. B.
Heywood,8 M. Frechet,8 and J. Plemelj64 are among others who have
made important contributions to this subject.

Davis: Present Status of Integral Equations 25

G. Bertrand* and H. Poincare have applied integral equations to
the theory of the tides and J. Hadamard to water waves. Poincar6
studied) also, the diffraction of Herzian waves by this method, and
T. Hayashi applied it to the Cauchy problem of the telegraphy
equation. G. Herglotz and P. Hertz used integral equations in the
theory of electrons. Thermoelasticity has been formulated in terms
of integral equations by L. Koschmieder and H. Laudien, and as
early as 1837 J. Liouville used them in the phenomena of thermo-
mechanics.

J. A. Carson in a series of important papers493, 494 has renewed
interest in the operational calculus of 0. Heavyside which has
been used effectively but with admitted lack of rigor in circuit
problems in electricity. Carson’s contribution has been in con-
necting the theory of this calculus with an integral equation of
Laplace type. The Heavyside theory depends essentially upon an
operational equation of the form h=l/H(p), where p is symbolically

d

equivalent to the differential operator — . Carson has shown that

dx

this equation is equivalent to an integral equation of the form

f 00

l/pH(p) = I h(t) e ptdt and has found its solution for a variety of
o

functions. One interesting feature of the theory is the occurrence of
asymptotic series representing the solution of the original circuit
problem. It seems that this application of integral equations is
likely to renew interest in the formal operational calculus. Indi-
cations of this trend are to be seen in the use of fractional derivatives,
and integrals in the solution of integral equations79 and in recent
important contributions to the subject of general operators and the
Heavyside Calculus by N. Wiener f and E. G. Berg.J

E. Picard and R. Marcolongo have written general articles on
the applications, and A. Kneser, in his treatise, has studied exten-
sively problems in the conduction of heat and the theory of
vibrations. To the first of these problems an important addition
was made by H. S. Carslaw in 1912, and to the latter H. Weyl, in
1912, and E. Trefftz, in 1922, contributed the results of new re-
searches. In 1906 Fredholm founded a theory of spectrum lines,
reducing the problem to one in integral equations. Three years
later C. Schaefer modified the theory in some essential details.

The study of H. Bateman in a mathematical theory of retail

*For references see section I of the Bibliography.

tThe Operational Calculus. Math. Annalen, vol. 95 (1926), pp. 557-584.

JHeavyside’s Operators in Engineering and Physics. Journal Franklin Institute, vol. 198 (1924)
pp. 647-702.

26

Indiana University Studies

trade, the applications of E. Baticle to problems in the stability of
structures, C. Charlier’s investigation of terrestrial refraction and
the composition of the atmosphere, and the discussion of T. Hayashi
on the theory of diffusion of mixed gases indicate the broad class of
problems to which the new theory can be applied.

The latest application to be made of integral equations is found
in the mathematical theory of economics. This study has been
initiated by G. C. Evans,478 C. F. Roos,491 and H. Hotelling,492 and
gives promise of laying the foundations of a new and more exact
science of economics. To quote from Professor Evans: “There
is not only an opportunity for mathematicians in economics, but
even a duty; and on the mathematicians in an unusual degree lies
the responsibility for the economic welfare of the world.” Hotelling
has founded a theory of depreciation which leads to a Yolterra
equation of second kind with a kernel of the form K ( x , t ) =

A promising application of integral and integro-differential
equations has been made by Yolterra in the study of problems in
so-called hereditary mechanics, which includes the phenomena of
elastic and magnetic hysteresis. The name and definition are due to
E. Picard, whom we quote as follows:*

In all this study [of classical mechanics] the laws which express our ideas
on motion have been condensed into differential equations, that is to say,
relations between variables and their derivatives. We must not forget that
we have, in fact, formulated a principle of non-heredity , when we suppose that
the future of a system depends at a given moment only on its actual state, or
in a more general manner, if we regard the forces as depending also on velocities,
that the future depends on the actual state and the infinitely neighboring-
state which precedes. This is a restrictive hypothesis and one which, in
appearance at least, is contradicted by facts. Examples are numerous where
the future of a system seems to depend on former states: here we have heredity.
In some complex cases one sees that it is necessary, perhaps, to abandon
differential equations and consider functional equations in which there appear
integrals taken from a distant time to the present, integrals which will be, in
fact, this hereditary part. The proponents of classical mechanics, however,
are able to pretend that heredity is only apparent and that it amounts merely
to this, that we have fixed our attention upon too small a number of variables.
But the situation in this case is just as it was in the simpler one, only under
conditions that are more complex.

The following example from Yolterraf will help to clarify this
idea. We know from elementary physics that the relation, to a first

*La Mecanique classique et ses approximations successives. Revista di Scienza, vol. 1 (1907),
pp. 4-15. In particular, p. 15.
t'Ref. 19, pp. 138-139, and 150.

Davis: Present Status of Integral Equations 27

approximation, between the couple of torsion, P. and the 'angle of
torsion, W, is given by the linear equation,

W = k P , (12)

where k is a physical constant.

But it is reasonable to suppose that W does not depend merely
upon the present moment of torsion, but upon all preceding ones as
well. The elastic body has experienced fatigue from previous
distortions and, in this way, has inherited characteristics from the
past. We may express this analytically by saying that W(t) is a
function of a line.

When W(t) is developed according to the calculus of such
functions, equation (12) is replaced by the integral equation,

W(t) k P(t) + P K(t,s) P(s) ds ,

J to

where K(t,s) is the coefficient of heredity.

Assuming that W(t) and P(t) are both periodic functions of the
time with the same period, Volterra shows that the coefficient of
heredity is then of the form,

K(t,s) = K(t-s).

Experimental evidence for the existence of a true hereditary
coefficient has been sought for, but results so far obtained are not
conclusive.

Here again as in the work of Hilbert we see integral equations
in their application superseding differential equations as a tool of
greater power and generality. How far these new equations are
destined to replace the methods which have been standard in
mathematical physics and astronomy for two centuries is one of the
interesting questions to be answered by the future of mathematical
research.

Bibliography

Because of the diverse subjects which are now included under the
generic title of “ Integral Equations’ ’ it has been thought that greater
service can be rendered by dividing the following bibliography into
topics, rather than by a chronological arrangement of titles. In a
few cases where a paper includes the subject-matter listed under two
separate headings, this paper has been included twice in the Bibliog-
raphy. On account of the great scope of integral equations and the
large number of memoirs which have been published since 1900, the
author does not expect that this Bibliography is free from the error
of omission.

A. GENERAL WORKS

1. Robert D’Adhemar. Exercises et legons d’ Analyse. Paris. Gauthier-
Villars (1908), pp. 121-184.

2. Robert D’Adhemar. L’equation de Fredholm et les problemes de
Dirichlet at Neumann. Paris. Librairie A. Hermann (1909).

3. Robert D’Adhemar. Legons sur les Principes de 1’ Analyse, vol. 1.
Paris, Gauthier-Villars (1912), chaps. 9, 10, pp. 227-285.

4. H. Bateman. Report on the History and present State of the Theory of
of Integral Equations. Report to British Association for the Advance-
ment of Science. Sheffield (1910), pp. 345-424.

5. M. Bocher. An Introduction to the Study of Integral Equations.
Cambridge Tracts, No. 10, (1909). University Press, Cambridge, 72 p.

6. E. Goursat. Cours d’analyse mathematique, 2d ed., vol. 3. Paris,
Gauthier-Villars (1915), chaps. 30, 31, 32, 33, pp. 323-544.

7. H. Hahn. Bericht liber die Theorie der linearen Integralgleichungen.
Jahresbericht der Deutschen Mathematiker-Vereinigung, vol. 20 (1911),
pp. 69-117.

8. H. B. Heywood and M. Frechet. L’equation de Fredholm et ses
applications a la Physique Mathematique. Paris, Hermann and Fils
(1912), 165 p.

9. D. Hilbert. Grundziige einer allgemeinen Theorie der Linearen
Integralgleichungen. Gott. Naehrichten, 6 Mitteilungen (1904-1910).
Leipzig, Teubner (1912), 282 p.

10. J. Horn. Einftihrung in die Theorie der partiellen Differentialgleichun-
gen. Leipzig (1910), chaps. 5, 6, 7, pp. 188-332.

11. A. Kneser. Die Integralgleichungen und ihre Andwendungen in der
Mathematischen Physik, Braunschweig, Vierweg and Sohn (1911),
1st ed.; (1922), 2d ed. 292 p.

12. A. Korn. Uber freie und erzwugene Schwingungen. Eine Einfiihrung
in die Theorie der linearen Integralgleichungen. Leipzig and Berlin.
Teubner (1911), 136 p.

(28)

Davis: Present Status of Integral Equations 29

13. G. Kowalewski. Emfuhrung in die Determinanten Theorie. Leipzig,
Veit and Co. (1909), chaps. 18, 19, pp. 455-540.

14. T. Lalesco. Introduction a la Theorie des Equations Integrales.
Paris, Hermann and Fils (1912), 152 p.

15. W. V. Lovitt. Linear Integral Equations. New York, McGraw-Hill
(1924), 253 p.

16. S. Pincherle. Funktional Operationen und Gleichungen. Encyklopadie
der Math. Wiss., Bd. II, 1, Heft 6 (1906); (II, A, 11).

17. H. PoincarA Legons de Mechanique celeste, vol. 3. Theorie des marees,
chap. 10. Paris,. Gauthier-Villars (1910), pp. 233-303.

18. G. Vivanti. Elementi della a teoria delle equazioni integrali lineari.
Milano, Hoepli (1916), 398 p.

19. V. Volterra. Legons sur les equations integrales et les equations integro-
differentielles. Paris, Gauthier-Villars (1913), 164 p.

20. E. T. Whittaker and G. N. Watson. A Course of Modern Analysis,
University Press, Cambridge (1920), 3d ed., chap. 11, pp. 211-231.

B. MEMOIRS ON SPECIAL TOPICS
I. Applications

21. N. H. Abel. Auflosung einer mechanischen Aufgabe. Journal fur
mathematik, vol. 1 (1826), pp. 153-157. Also Oeuvres, Christiania
(1881), vol. 1, pp. 97-101.

22. A. Anzelius. Application de la theorie des equations integrales a un
probleme d’aimantation induite. Arkiv for Mat.., Astro, och Phys.,
vol. 15 (1921), no. 23, 19 p.

23. H. Bateman. An Integral Equation Occurring in a Mathematical
Theory of Retail Trade. Mess, of Math., vol. 49 (1920), pp. 134-137.

24. E. Baticle. Sur l’application de la theorie des equations integrales
a certain calculs relatifs a la stability des constructions (probleme a
une dimension). Comptes Rendus, vol. 163 (1916), pp. 978-980.

25. G. Bertrand. La theorie des marees et les equations integrales.
Annales scientifiques de l’ecole normale superieure, vol. 40, 3d ser.
(1923), pp. 151-258.

26. G. Bertrand. Le probleme de Dirichlet et le potentiel de simple couche.
Bull, des sciences mathematiques, vol. 47, 2d ser. (1923), pp. 282-288,
298-307.

27. G. Bertrand. L’equation de Fredholm et les masses statiques de la
premiere sort. Comptes Rendus, vol. 173 (1921), pp. 1448-1449.

28. H. S. Carslaw. A problem in the Linear Flow of Heat Discussed from
the Point of View of the Theory of Integral Equations. Proc. of Edin-
burgh Math. Soc., vol. 30 (1912), pp. 97-106.

29. J. R. Carson. Theory of Transient Oscillations of Electrical Networks
and Transmission Systems. Trans. Amer. Inst, of Elec. Eng. (1919),

82 p.

30. J. R. Carson. Theory and Calculation of Variable Electrical Systems.
Phys. Review, vol. 17 (1921), pp. 116-134.

31. C. V. L. Charlier. Sur la refraction terrestre et la constitution de
l’atmosphere. Comptes Rendus, vol. 157 (1913), pp. 831-834.

32. G. C. Evans. The Mathematical Theory of Economics. Amer. Math.
Monthly, vol. 32 (1925), pp. 104-110.

30

Indiana University Studies

33. Ph. Frank. Die Integralgleichungen in der Theorie der Kleinen
Schwingungen von Faden und das Rayleighsche Prinzip. Sitzungs-
berichte zu Wien, vol. 117 (1908), pp. 279-298.

34. I. Fredholm. Sur un nouvelle methode pour la resolution du probleme
de Dirichlet. Ofv. of. Kongl. Sv. Vetens kaps Akad. Fohr., vol. 57,
(1900) pp. 39-46.

35. I. Fredholm. Sur la theorie des spectres. Comptes Rendus, vok 142
(1906), pp. 506-508.

36. I. Fredholm. Sur la reduction d’un probleme de la mecanique
rationnelle a une equation integrale lineaire. Comptes Rendus, vol.
171 (1920), pp. 426-428.

37. I. Fredholm. Une application de la theorie des equations integrates.
Comptes Rendus, vol. 174 (1922), pp. 980-982.

38. J. Hadamard. Sur les ondes liquides. Atti dei Lincei, vol. 25 (1)
(1916), pp. 716-719.

39. T. Hayashi. The Cauchy Problem on the Equation of Telegraphy.
Rendiconti di Palermo, vol. 46 (1922), pp. 117-121.

40. T. Hayashi. Some Integral Equations in the Theory of Diffusion of
Mixed Gases. Tohoku Math. Journal, vol. 21 (1922), pp. 355-359.

41. T. Hayashi. Some Problems in a Theory of Interest and Some Integral
Equations. Tohoku Math. Journal, vol. 19 (1921), pp. 126-135.

42. G. Herglotz. Uber die Integralgleichungen der Elektronentheorie.
Math. Annalen, vol. 65 (1908), pp. 87-106.

43. P. Hertz. Die Integralgleichungen der Electronentheorie, Math.
Annalen, vol. 65 (1908), pp. 61-86.

44. D. Hilbert. Begrtindung der kinetischen Gastheorie. Math. Annalen,
vol. 72 (1912), pp. 562-577.

45. E. Holmgren. Sur une application de l’equation integrale de M.
Volterra. Arkiv f. Mat., Astr. och Fys., vol. 3 (1906), No. 12, 4 p.

46. F. Jager. Sur P application de la methode de Fredholm aux marees.
d’un bassin limite par des parois verticales. Comptes Rendus, vol
158 (1914), pp. 616-618.

47. A. Kneser. Dynamische Deutung gewisser Integralgleichungen mit
symmetrischem Kern. Jahresbe. Schles. Ges. fur vaterl. Kultur, (1909),

8 p.

48. L. Koschmieder. Anwendung der Integralgleichungen auf eine thermc-
elastische Aufgabe. Journal ftir Math., vol. 143 (1913), pp. 285-293.

49. H. Laudien. Entwicklung willkurlicher Funktionen bei einem ther-
inoelastischen Problem. Journal ftir Math., vol. 148 (1918), pp. 79-87.

50. G. Lauricella. SuH’equazione integrale di prima specie relativa al
problema di Dirichlet sul piano. Atti dei Lincei, vol. 19 (1), (1910),
pp. 521-531.

51. P. Levy. Sur une generalisation de la methode de Fredholm pour la
resolution du probleme de Dirichlet. Journal de l’ecole polytechnique,
vol. 15, 2d ser. (1911), pp. 195-210.

52. W. Myller-Lebedeff. Uber die Anwendung der Integralgleichungen in
einer parabolischen Randwertaufgabe. Math. Annalen, vol. 66 (1908), pp.
325-330.

53. J. Liouville. Solution nouvelle d’un probleme d’ analyse, relatif aux
phenomenes thermo-mecaniques. Journal de math., vol. 2, (1837), pp.
439-456.

Davis: Present Status of Integral Equations 31

54. R. Marcolongo. La theorie des equations integrales et ses applications
a la physique mathematique. Annales de Toulouse, vol. 10, 2d ser.
(1908), pp. 99-112. Also Atti dei Lincei, vol. 16 (1), (1907), pp. 742-749.

55. C. W. Oseen. Tiber die Bedeutung der Integralgleichungen in der
Theorie der Bewegung einer reibenden, unzusammendruckbaren Fliissig-
keit. Arkiv for Mat., Astro., och Fys., vol. 6 (1911), no. 23, 19 p.

56. E. Picard. Sur quelques applications de l’equation fonctionnelle de
Fredholm. Rendiconti di Palermo, vol. 22 (1906), pp. 241-259.

57. E. Picard. Sur la solution de probieme generalise de Dirichlet relatif a
une equation lineaire du type elliptique au moyen de 1’ equation de
Fredholm. Annales de l’ecole normale superieure, vol. 23, 3d ser.
(1906), pp. 509-516.

58. E. Picard. Sur une equation fonctionelle se presentant dans la theorie
de la distribution de l’electricite avec la loi de Neumann. Comptes
Rendus, vol. 165, pp. 777-781. Also Ann. de l’ecole normale superieure,
vol. 34, 3d ser. (1917), pp. 355-361.

59. E. Picard. Application de la theorie des equations integrales a certains
problemes de la theorie analytique de la chaleur dans l’hypothese d’un
saut brusque de temperature a la surface de separation des corps en
contact. Comptes Rendus, vol. 156 (1913), pp. 1119-1124.

60. E. Picard. Sur un theoreme general relatif aux equations integrales de
premiere espece et sur quelques problemes de physique mathematique.
Rendiconti di Palermo, vol. 29 (1910), pp. 79-97.

61. E. Picard. Sur la distribution de l’electricite avec la loi de Neumann
et sur le pouvoir refroidissant d’un courant fluide sur un solide. Ann.
de l’ecole normale superieure, vol. 25 (1908), pp. 585-591.

62. E. Picard. Sur deux applications de 1’ equation de Fredholm a des prob-
lemes de physique mathematique. Comptes Rendus, vol. 147 (1908),
pp. 547-552.

63. F. B. Pidduck. The Kinetic Theory of the Motion of Ions in Gases.
London Math. Soc., vol-. 15 (1916-17), pp. 89-127.

64. J. Plemelj. Uber die Anwendung der Fredholmschen Funktional-
gleichungen in der Potentialtheorie. Sitzungsberichte der K. K. Akad.
d. Wiss, Wien, vol. 113 (1903), pp. 21-29.

65. H. Poincare. Sur le diffraction des ondes Herziennes. Rendiconti di
Palermo, vol. 29 (1910), pp. 169-259.

66. E. G. C. Poole. A New Integral Equation Satisfied by the Solutions
of a Certain Linear Differential Equation Which Occurs in the Electrical
Oscillations and of the Tides. Mess, of Math., vol. 49 (1919-20), pp.
91-96.

67. Risser. Sur une application de 1’ equation de Volterra au probieme
de la repartition par age dans les milieux a effectif constant. Comptes.
Rendus, vol. 171 (1920), pp. 845-847.

68. L. Silberstein. The Electron Theory of Metallic Conductors Applied to
Electrostatic Problems. Phil. Mag., vol. 36, 6th ser.'" (1918), pp. 413-420.

69. S. Sano. Application of Fredholm’s Theorem on the Wave Produced
by the Normal Pressure on the Surface of a Semi-infinite Elastic Solid
Initially at Rest. Proc. of the Tokyo Math.-Phys. Soc., vol. 7, 2d ser.
(1913-14), pp. 342-346.

70. C. Schaefer. Dispersionstheorie und Serienspektren. Ann. der Physik,
vol. 28 (1909), pp. 421-435; vol. 29 (1909), pp. 715-722.

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Indiana University Studies

71. E. Trefftz. Schwingungsprobleme und Integralgleichungen. Math.
Annalen, vol. 87 (1922), pp. 307-314.

72. V. Volterra. Vibrazioni elastiche nel caso della eredita. Atti dei
Lineei, vol. 21, (2), (1912), pp. 3-12.

73. H. Weyl. liber die Abhangigkeit der Eigenschwingen einer Membran
von deren Begrenzung. Journal fur math., vol. 14 (1912), pp. 1-11.

II. Applications of General Analysis

74. R. Gateau. Sur la notion d’integrale dans le domaine fonctionnel et
sur la theorie du potentiel. Bull, de la soc. math., vol. 47 (1919), pp.
47-70.

75. E. H. Moore. On the Foundations of the Theory of Linear Integral
Equations. Bull. Amer. Math. Soc., vol. 18 (1911-12), pp. 334-362.

76. A. J. Pell. A General System of Linear Equations. Trans. Amer.
Math. Soc., vol. 20 (1919), pp. 343-355.

77. Mary E. Wells. On Inequalities of Certain Types in General Linear
Equation Theory. Amer. Journal of Math., vol. 39 (1917), pp. 163-184.

III. Calculus of Operators

78. J. R. Carson. The Heavyside Operational Calculus. The Bell System
Tech. Journal, Nov., 1922, pp. 1-13.

79. H. T. Davis. Fractional Operations as Applied to a Class of Volterra
Integral Equations. Amer. Journal of Ma;th., vol. 46 (1924), pp. 95-109.

80. F. L. Hitchcock and N. Wiener. A New Vector Method in Integral
Equations. Bull. No. 25, Dept, of Math., Mass. Inst, of Tech. (1921).

81. P. Levy. Sur la derivation et l’integration generalises. Bull, des
sciences math., vol. 47, 2d ser. (1923), pp. 307-320, 343-352.

82. J. Peres. Sulle equazioni integrali. Atti dei Lineei, vol. 22 (1), (1913),
pp. 66-76.

83. S. Pincherle. Sulle operazioni lineari, e sullo teoria delle equazioni
integrali. Atti dei Lineei, vol. 21 (2), (1912), pp. 572-577.

84. C. E. Weatherburn. Vector Integral Equations of the First Kind.
Quart. Journal of Math., vol. 46 (1914-15), pp. 334-356.

IV. Connection with Developments in Function Theory

85. F. Bernstein. Die Integralgleichung der elliptischen Thetanullfunktion.
Sitzungsberichte der prenz-Akad. der Wiss. (Berlin), vol. 40 (1920),
pp. 735-747. Also Verslageh Koninklijke Akad. van Vetenschappen
(Amsterdam), vol. 29 (1920), pp. 759-765.

86. F. Bernstein and G. Doetsch. Die Integralgleichungen der elliptischen
Thetanullfunktion. Gott. Nachrichten (1922), pp. 32-46, 47-52.

87. C. Haseman. Anwendung der Theorie der Integralgleichungen auf
einige Randwertaufgaben der Funktionentheorie. Math. Annalen.,
vol. 66 (1908), pp. 258-272.

88. R. Ivonig. Anwendung der Integralgleichungen auf ein Problem der
Theorie der automorphen Funktionen. Math. Annalen, vol. 71 (1911),
pp. 206-213.

Davis: Present Status of Integral Equations

33

V. Connection with Differential Equations

89. G. D. Birkhoff. Boundary Value and Expansion Problems of Ordinary
Linear Differential Equations. Trans. Amer. Math. Soc., vol. 9 (1908),
pp. 373-395.

90. E. Cotton. Equations differentielles et equations integrales. Bull,
de la soc. mathematique, vol. 38 (1910), pp. 144-154.

91. M. Gevrey. Sur les equations aux derivees partielles du type
parabolique. Journal de math., vol. 78 (1913), pp. 305-471; vol. 79
(1914), pp. 105-148.

92. T. Lalesco. Sur F application des equations integrales a la theorie des
equations differentielles lineaires. Comptes Rendus, vol. 166 (1918),
pp. 727-728.

93. E. Picard. Sur une equation 'fonctionnelle se presentant dans la
theorie de certaines equations aux derivees partielles. Comptes Rendus,
vol. 144 (1907), pp. 1009-1012.

94. E. G. Poole. On Certain Classes of Mathieu Functions. Proc. London
Math. Soc., vol. 20 (1921-22), pp. 374-388.

95. L. Sinigallia. Sulle equazione differenziali lineari. Atti dei Lincei,
vol. 17 (2), (1908), pp. 106-112.

96. M. Watanabe. On a Linear Integral Equation. Proc. of Tokyo Math.-
Phys. Soc., vol. 8, 2d ser. (1915-16), pp. 212-213: Tohoku Math. Journal,
vol. 8 (1915), pp. 130-174; vol. 10 (1916), pp. 220-224.

97. C. E. Weatherburn. The Mixed Boundary Problem for the Generalized
Potential Corresponding to the Equation V2U — k2U = 0. Quart.
Journal of Math., vol. 46 (1914-15), pp. 83-94.

98. C. E. Weatherburn. Boundary Problems for the Generalized Potential
Corresponding to the Equation \72U — k2U = 0. Quart. Journal of
Math., vol. 46 (1914-15), pp. 66-82.

99. E. T. Whittaker. On a Class of Differential Equations Whose Solutions
Satisfy Integral Equations. Proc. of Edinburgh Math. Soc., vol. 33
(1915), pp. 14-23.

VI. Equations in Two or More Variables

100. H. Bateman. A Class of Integral Equations. Trans. Cambridge
Phil. Soc., vol. 20 (1906), pp. 233-255.

101. A. Blondel. Sur V equation fonctionnelle lineaire. Comptes Rendus,
vol. 150 (1), (1910), pp. 957-959.

102. T. H. Gronwall. An Integral Equation of the Volterra Type. Amer.
Annals of Math., vol. 16, 2d ser. (1914-15), pp. 119-122.

103. O. Kellogg. Zur Theorie der Integralgleichungen A(s,t) — B(st) =

J A(s,r) B(r,t) dr. Gottinger Nachrichten (1902), pp. 165-175.

" o

104. J. Soula. Sur certaines equations integrales. Atti dei Lincei, vol.
23 (1), (1914), pp. 132-137.

VII. Equations with Special Kernels

105. G. Andreoli. Sui nuclei periodici di Evans e la composizione di seconda
specie. Atti dei Lincei, vol. 25 (2), (1916), pp. 252-257, 299-305.

34

Indiana University Studies

106. T. Anghelutza. Sur le noyau symetrique gauche dans la theorie des
equations int6grales . Comptes Rendus, vol. 158 (1914), pp. 243-245.

107 . T. Boggio. Un theoreme sur les equations integrates. Comptes Rendus,
vol. 145 (1907.), pp. 619-622.

108. T. Carleman. Sur une classe d’equations integrates a noyau asymetrique.
Comptes Rendus, vol. 172 (1921), pp. 655-658.

109. A. Chicca. Suite equazioni integrali di Fredholm a nucleo simetrico.

, Atti di Torino, vol. 44 (1909), pp. 151-159.

110. E. Daniele. Sui Nuclei che si riproducono per iterazione. Rendiconti
di Palermo, vol. 37 (1914), pp. 262-266.

111. G. C. Evans. Application of an Integral Equation in Variable Differences
to Integral Equations. Bull. Amer. Math. Soc., vol. 22 (1915-16), pp.
493-503.

112. E. Goursat. Sur quelques points de la theorie des equations integrates.
Bull, de la Soc. Math., vol. 37- (1909), pp. 197-204.

113. E. Goursat. Sur un theoreme de la theorie des equations integrates.
Comptes Rendus, vol. 146 (1908), pp. 327-329.

114. H. B. Heywood. Sur quelques points de la theorie des fonctions
fondamentales relatives a certaines equations integrates. Comptes
Rendus, vol. 145 (1907), pp. 908-910.

115. R. Jentzsch. liber Integralgleichungen mit positiven Kern. Journal
ftir Math., vol. 141 (1912), pp. 235-244.

116. R. Konig. Die Oscillationseigenschaften der Eigenfunktionen der
Integralgleichung mit definitem Kern und das Jacobische Kriterium
der Variationsrechnung. Thesis, Gottingen (1907), 48 p.

117. A. Korn. Sur les equations integrates a noyau asymetrique. Comptes
Rendus, vol. 156 (1913), pp. 1965-1967.

118. A. Korn. Sur une classe importante de noyaux asymetriques. Comptes
Rendus, vol. 153 (1911), pp. 171-173, 327-328, 539-541.

119. N. Kryloff. Sur quelques proprietes des equations integrates a noyau
non symetrique. Comptes Rendus, vol. 156 (1913), pp. 1587-1589.

120. T. Lalesco. Sur un point de la theorie des noyaux symetrisables.
Comptes Rendus, vol. 166 (1918), pp. 410-411. Also see pp. 252-253.

121. T. Lalesco. Sur les noyaux symetriques gauches. Comptes Rendus,
vol. 151 (1910), pp. 1336-1337/

122. E. Laura. Sopra una classe di nuclei semi-definiti positivi. Atti dei
Lincei, vol. 27 (1), (1918), pp. 434-438.

123. G. Lauricella. Sopra i nuclei reiterate. Atti dei Lincei, vol. 20 (1),
(1911), pp. 885-896.

124. A. Proszynski. Sur la resolution de P equation integrate a noyau
symetrique. Nouvelles Annates de Math., vol. 11, 4th ser. (1911), pp.
394-407.

125. V. Volterra. Osservazioni sui nuclei delle equazioni integrali. Atti
dei Lincei, vol. 23 (1), (1914), pp. 266-269.

VIII. Fredholm’s Equation

126. R. D’Adhemar. L’equation de Fredholm et les problemes de
Dirichlet et de Neumann. Annates de la soc. de Bruxelles, vol. 33
(1909), pp. 173-239.

Davis: Present Status of Integral Equations 35

127. G. D. D’Arone. Sopra un teorema della teoria delle equazioni integrali.
Giornale di Mat., vol. 50 (1912), pp. 191-192.

128. H. Bateman. A Formula for the Solving Function of a Certain Integral
Equation of Second Kind. Mess, of Math., vol. 37 (1908), pp. 179-187.

129. H. Bateman. Sur V equation de Fredholm. Bull, des Sciences Math.,
vol. 30 (1906), pp. 264-270.

130. T. Boggio. Sopra alcune formole fondamentali relative alle equazioni
integrali. Atti dei Lincei, vol. 17 (2),. (1908), pp. 454-458.

131. T. Carleman. Sur les equations integrales. Comptes Rendus, vol.
169 (1919), pp. 773-776.

132. R. Courant. Zur Theorie der linearen Integralgleichungen. Math.
Annalen, vol. 89 (1923), pp. 161-178.

133. A. C. Dixon. The Solution of Integral Equations. Proc. London Math.
Soc., vol. 7 (1909), pp. 314-337.

134. I. Fredholm. Sur un nouvelle methode, etc. (See 34.)

135. I. Fredholm. Sur line classe de transformations rationnelles. Comptes
Rendus, vol. 134 (1902), pp. 219-222.

136. I. Fredholm. Sur une classe d’ equations fonctionnelles. Comptes
Rendus, vol. 134 (1902), pp. 1561-1564.

137. I. Fredholm. Sur une classe d’equations fonctionnelles. Acta Math.,
vol. 27 (1903), pp. 365-390.

138. E. Goursat. R'echerches sur les equations integrales lineaires. Annales
de Toulouse, vol. 10, 2d ser. (1908), pp. 5-98.

139. E. Goursat. Sur un cas elementaire de L equation de Fredholm. Bull,
de la soc. math, de France, vol. 35 (1907), pp. 163-173.

140. H. B. Heywood. Sur L equation fonctionnelle de Fredholm. Journal
de Math., vol. 4, 6th ser. (1908), pp. 283-330.

141. E. Holmgren. Sur la theorie des equations integrales lineaires. Ark.
for Mat., Stockholm, vol. 3 (1906-7), no. 1, 24 p.

142. E. Holmgren. Das Dirichletsche Prinzip und die Theorie der linearen
Integralgleichungen. Math. Annalen, vol. 69 (1910), pp. 498-516.

143. W. A. Hurwitz. On the Pseudo-resolvent to the Kernel of an Integral
Equation. Trans. Amer. Math. Soc., vol. 13 (1912), pp. 405-418.

144. G. Julia. Sur les discontinuities des solutions de certaines equations de
Fredholm. Comptes Rendus, vol. 172 (1921), pp. 1279-1281.

145. J. Kampe de Feriet. Sur une equation integrale de seconde espece
admettant les fonctions hyperspheriques comme solutions fondamentales.
Compte Rendus, vol. 162 (1916), pp. 747-749. See also Comptes Rendus,
vol. 164 (1917), pp. 856-859.

146. A. Korn. Sur V equation fonctionnelle de M. Fredholm. Comptes
Rendus, vol. 144 (1907), pp. 1411-1414.

147. T. Lalesco. Quelques remarques sur 1’ equation de Fredholm. Buletir.ul
Soc. de Stiinte, Bucarest, vol. 19 (1910), pp. 46-57.

148. T. Lalesco. Sur les noyaiix resolvants. Comptes Rendus, vol. 151
(1910), pp. 928-930.

149. T. Lalesco. Sur les poles des noyaux resolvants. Comptes Rendus,
vol. 151 (1910), pp. 1033-1034.

150. T. Lalesco. L’etude des noyaux resolvants. Bull, de la Soc. Math.,
vol. 39 (1911), pp. 85-103.

151. H. Lebesgue. Sur la methode de Goursat pour la resolution de

L equation de Fredholm. Bull de la Soc. Math., vol. 36 (1908), pp. 3-19.

36

Indiana University Studies

152. P. Levy. Sur une generalisation, etc. (See 51.)

153. H. Mercer. Plemelj’s Canonical Form. Trans, of Cambridge Phil.
Soc., vol. 21 (1908), pp. 129-142.

154. A. Myller. Sur les equations integrales. Bull, des Sciences Math.,
vol. 31 (1907), pp. 74-76.

155. L. Orlando. Sulla risoluzione delle equazioni integrali. Atti del
IV Math., Congr., Rome (1909), pp. 122-128.

156. C. Platrier. Sur les variations de la determinants et de la reteolvante
de Fredholm avec le champ d’integration. Nouvelles Annales de Math.,
vol. 13, 4th ser. (1913), pp. 183-186.

157. J. Plemelj. Zur Theorie der Fredholmschen Funktionalgleichungen.
Monatschefte fur Math. u. Phys., vol. 15 (1904), pp. 93-128.

158. H. Poincare. Remarques diverses sur F equation de Fredholm. Acta
Math. vol. 33 (1910), pp. 57-86.

159. P. Saurel. On Fredholm’s Equation. Bull Amer. Math. Soc., vol.
15 (1909), pp. 445-450.

160. A. Vergerio. Sulle equazioni integrali del tipo Fredholm. Rendiconti
di Palermo, vol. 41 (1916), pp. 1-35.

161. G. Vivanti. Dimostrazione elementare d’una formola fondamentale
nella teoria delle equazioni integrali. Giornale di Mat., vol. 53 (1915),
pp 209-211.

IX. Fredholm’ s Determinant

162. T. Carleman. Sur le genre du denominateur D(X) de Fredholm. Arkiv
for Mat., Astro., och Phys., vol. 12 (1917), no. 15, 5 p.

163. T. H. Hildebrandt. On Bordered Fredholm Determinants. Bull. Amer.
Math. Soc., vol. 26 (1919-20), pp. 400-405.

164. W. A. Hurwitz. Note on the Fredholm Determinant. Bull. Amer.
Math. Soc., vol. 20 (1913-14), pp. 406-408.

165. T. Lalesco. Sur le fonction D(X) de Fredholm. Comptes Rendus, vol.
145 (1907), pp. 1136-1137.

166. T. Lalesco. Sur l’ordre de la fonction entiere D(X).- Comptes Rendus,
vol. 145 (1907), pp. 906-907.

167. J. Marty. Transformation d’un determinant infini en un determinant
de Fredholm. Bull, des Sciences Math., vol. 33, 2d ser. (1909), pp.
296-300.

168. J. Mollerup. Sur l’identite du determinant de Fredholm et d’un
determinant infini de von Koch. Bull, des Sciences Math., vol. 36,
2d ser., (1912), pp. 130-136.

169. L. Tocchi. Due Teoremi sulle serie di Fredholm. Giornale di Mat.,
vol. 54 (1916), pp. 141-150.

170. L. Tocchi. Sul numero di soluzioni dell’ equazione di Fredholm quando
D(X) = 0. Giornale di Mat., vol. 57 (1919), pp. 171-178.

X. Functional Equations of Miscellaneous Character

171. E. Bounitzky. Sur une classe d’ equations integrales. Bull, des Sciences
math., vol. 32, 2d ser. (1908), pp. 14-31.

172. P. Browne. Sur quelques equations fonctionnelles. Comptes Rendus,
vol. 154 (1912), pp. 1402-1404.

Davis: Present Status of Integral Equations 37

173. P. Browne. Upon some singular cases of the equations of Volterra.
Comptes Rendus, vol. 154 (1912), pp. 1289-1291. See also Comptes
Rendus, vol. 155 (1912), pp. 129-132.

174. P. Browne. Sur un probleme d’ inversion pose par Abel, et sur ses
generalisations. Annales de Toulouse, vol. 4, 3d ser., (1912), pp. 63-198.

175. E. Cesaro. Sopra un equazione funzionale trattata de Beltrami.
Rendiconto di Napoli, vol. 7 (1901), pp. 284-289.

176. U. Crudeli. Contributo alia teoria di certe equazioni funzionali. Atti
dei Lincei, vol. 18 (1), (1909), pp. 493-496.

177. G. Fubini. Sopra una formole del Fredholm nel problema dell’
inversione degli integrali definiti. Bollentum Accad. Catania (1905),
no. 83, pp. 3-7.

178. G. Fubini. Di alcune nuove classi di equazioni integrali. Atti dei
Lincei, vol. 19 (1910), pp. 669-676.

179. J. Horn. Laplacesche Integrale als Losungen von Funktionalgleichungen,
Journal fur Math., vol. 146 (1916), pp. 95-115.

180. G. Lauricella. Sopra alcune equazione differenziali lineari. Atti dei
Lincei, vol. 17 (1), (1908), pp. 775-786.

181. P. Nalli. Sopra una equazione funzionale. Atti dei Lincei, vol. 29 (2),
(1920), pp. 23-25, 84-86.

182. S. Pincherle. Sopra certe equazioni integrali. Atti dei Lincei, vol.
18 (2), (1909), pp. 85-86.

183. C. Platrier. Un application de V equation fonctionnelle de Fredholm.
Nouvelles Annales de Math., vol. 11, 4th ser. (1911), pp. 508-513.

184. G. Polya. Uber eine von Herrn C. Runge behandelte Integralgleichung.
Math. Annalen, vol. 75 (1914), pp. 376-379.

185. C. Popovici. Sur une equation fonctionnelle. Comptes Rendus, vol.
158 (1914), pp. 1866-1869.

186. F. Tricomi. Sulle equazioni lineari alle derivate parziali di 2° ordino
di tipo misto. Atti dei Lincei, vol. 30 (2), (1921), pp. 495-498.

187. C. Runge. Uber eine besondere Art von Integralgleichungen. Math.
Annalen, vol. 75 (1914), pp. 130-132.

188. N. Wiener. A New Type of Integral Equation. Bull. no. 40, Dept, of
Math., Mass. Institute of Tech. (1922).

XI. Functions of Lines

189. F. Tricomi. Su di una classe di equazioni alle derivate funzionali.
Atti dei Lincei, vol. 30 (2), (1921), pp. 402-405), 456-460.

190. F. Tricomi. SuH’iterazione delle funzioni di linee. Giornale du Mat.,
vol. 55 (1917), pp. 35-42.

191. V. Volterra. Legons sur les fonctions de lignes. Paris, Gauthier-
Villars (1913), 230 p.

192. V. Volterra. Sulle equazioni alle derivate funzionali. Atti dei Lincei,
vol. 23 (1), (1914), pp. 393-399.

XII. Functions of Positive Type

193. H. Bateman. On Essentially Positive Double Integrals and the Part
Which they play in the Theory of Integral Equations. British Assn.
Report (Leicester), vol. 77 (1908), pp. 447-449.

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Indiana University Studies

194. H. Bateman. On Definite Functions. Messenger of Math., vol. 37
(1907), pp. 91-95.

195. H. S. Carslaw. Functions of Positive Type and their Application to the
Determination of Green’s Functions. Mess, of Math., vol. 42 (1913),
pp. 135-140.

196. J. Mercer. Functions of Positive and Negative Type and their Con-
nection with the Theory of Integral Equations. Trans, of the London
Phil. Soc, (A), vol. 209 (1909), pp. 415-446.

197. W. H. Young. A Note on a Class of Symmetric Functions and on a
Theorem Required in the Theory of Integral Equations. Mess, of
Math., vol. 40 (1910-11), pp. 37-43.

XIII. General Equation of First Kind

198. N. H. Abel. Solution de quelques problemes a l’aide d’integrales
definies. Magazin for Naturvidenskaberne, vol. 1 (1823). Also Oeuvres,
Christiania (1881), vol. 1, pp. 11-27. Also Sur les fonctions generatrices
et leur determinantes. Oeuvres, vol. 2, pp. 67-81.

199. L. Amoroso. Sulla risolubilita della equazione integrale di prima
specie. Atti dei Lincei, vol. 19 (1), (1910), pp. 68-75.

200. L. Amoroso. Sopra un’ estensione del teorema di Riesz-Fisher. Atti
dei Lincei, vol. 21 (2), (1912), pp. 41-47, 744-748.

201. L. Amoroso. Ricerche interno alle equazioni integrali lineari di prima
specie. Annali di Mat., vol. 16 (1909), pp. 123-140.

202. H. Bateman. The Inversion of a Definite Integral. Math. Annalen,
vol. 63 (1907), pp. 525-548.

203. H. Bateman. On the Inversion of a Definite Integral. Proc. London
Math. Soc., vol. 4, 2d ser. (1907), pp. 461-498.

204. P. J. Browne. Sur un probleme d’inversion pose par Abel. Comptes
Rendus, vol. 155 (1912), pp. 1136-1140.

205. P. J. Browne. Sur une formule directe pour la solution d’une equation
integrale d’Abel. Comptes Rendus, vol. 158 (1914), pp. 1562-1565.

206. P. Burgatti. Sull’inversione degli integrali definiti. Atti dei Lincei,
vol. 12 (2), (1903), pp. 443-452, 596-601.

207. P. J. Daniell. Sull’ equazione integrale di la specie con nucleo non-
simmetrico. Atti dei Lincei, vol. 25 (1), (1916), pp. 15-17.

208. I. Fredholm. Sur une classe d’ equations fonctionnelles. Acta Math.,
vol. 27 (1903), pp. 365-390.

209. G. Fubini. Sull’inversione degli integrali definiti. Rendiconto di
Napoli, vol. 10, 3d ser. (1904), pp. 61-64.

210. E. Goursat. Sur un probleme d’inversion resolu par Abel. Acta Math.,
vol. 27 (1903), pp. 129-133.

211. T. Hayashi. A Remark on an Integral Equation Solved by Mr. Hira-
kawa. Tohoku Math. Journal, vol. 10 (1916), pp. 56-59.

212. N. Hirakawa. On a Simple Integral Equation. Tohoku Math. Journal,
vol. 8 (1915), pp. 38-41.

213. E. Holmgren. Sur l’iiiversion des integrales definies. Bihang. t.
Kongl.-Svenska V. Akad.-Handl., vol. 25 (1900), no. 3, 19 p.

214. E. Holmgren. Sur un theoreme de M. V. Volterra sur l’inversion des
integrales definies. Atti del Torino, vol. 35 (1900), pp. 570-580.

Davis: Present Status of Integral Equations

39

215. J. Horn. Volterrasche Integralgleichungen und Summengleichungen.
Journal fur Math., vol. 140 (1911), pp. 120-174.

216. P. Humbert. On Some Results Concerning Integral Equations. Proc.
of the Edinburgh Math. Soc., vol. 32 (1914), pp. 19-29.

217. P. Humbert. On a Class of Integral Equations. Proc. of the Edinburgh
Math. Soc., vol. 33 (1915), pp. 35-41.

218. T. Lalesco. Sur une equation integrale du type Volterra. Bull, des
Sciences Math., vol. 35, 2d ser. (1911), pp. 205-212.

219. G. Lauricella. Sulla resoluzione dell’ equazione integrale di la specie.
Atti dei Lincei, vol. 20 (1), (1911), pp. 528-536.

220. G. Lauricella. Sull’equazione integrale di la specie. Atti dei Lincei,
vol. 18 (2), (1909), pp. 71-75.

221. J. Le Roux. Sur les integrales des equations lineaires. Ann. de l’ecole
normale superieure, vol. 12, 3d ser. (1895), pp. 227-316; in particular
p. 244 et seq.

222. T. Levi-Civita. Sull’inversione degli integrali definiti ne.l campo reale.
Atti di Torino, vol. 31 (1895), pp. 25-51.

223. J. Mollerup. Une remarque sur les equations integrales de premiere
espece. R^ndiconti di Palermo, vol. 29 (1910), pp. 378-379.

224. C. H. Muntz. Allgemeine independente Auflosung der Integral-
gleichungen erster Art. Math. Annalen, vol. 87 (1922), pp. 139-149.

225. E. Picard. Sur un theoreme general etc. (See 60.)

226. E. Picard. Sur une equation fonctionnelle. Comptes Rendus, vol.
139 (1904), pp. 245-248.

227. E. Picard. Remarque au sujet d’une equation integrale consideree
par M. Charlier. Comptes Rendus, vol. 157 (1913), pp. 813-814.

228. E. Picard. Sur les equations integrales de premiere espece. Comptes
Rendus, vol. 148 (1909), pp. 1707-1708.

229. E. Picard. Sur une classe de developpements en serie de fonctions
fondamentales se rattachant a certaines equations fonctionnelles.
Comptes Rendus, vol. 149 (1909), pp. 1337-1340.

230. M. Picone. Sopra un’ equazione integrale di prima specie a limiti
variabili considerata da Volterra. Atti dei Lincei, vol. 19 (2), (1910),
pp. 259-265.

231. S. Pincherle. Sull’inversione degl’integrali definiti. Mem. di Mat.
Societa Italiana delle Scienze, vol. 15, 3d. ser. (1908), pp. 3-43.

232. S. Pincherle. Sull’inversione analitica degl’integrali definiti. Ren-
diconto di Bologna, vol. 11 (1907), pp. 17-19.

233. H. Poincare. Sur quelques applications de la methode de Fredholm.
Comptes Rendus, vol. 148 (1909), pp. 125-126.

234. K. Popoff. Sur les equations de Fredholm de premiere espece. Comptes
Rendus, vol. 157 (1913), pp. 1395-1397.

235. C. Popovici. Nouvelles solutions de l’equation de Volterra. Rendiconti
di Palermo, vol. 39 (1915), pp. 341-344.

236. F. Sbrana. Sopra certe equazioni integrali considerate dal prof. Tedone.
Atti dei Lincei, vol. 30 (2), (1921), pp. 492-494.

237. F. Sbrana. Sopra certe equazioni integrali di Volterra risolubili con
procedimenti infiniti. Atti dei Lincei, vol. 32 (1), (1923), pp. 156-157.

238. C. Severini. Sulle equazioni integrali. 0(x)' xn dx = 0, n = 0, 1, 2,

Atti dei Lincei, vol. 30 (1), (1921), pp. 17-19.

40

Indiana University Studies

239. C. Severini. Sulle equazioni integrali di prima specie del tipo Fredholm.
Atti dei Lincei, vol. 23 (1), (1914), pp. 219-225, 315-321.

240. N. Sonine. Sur la generalisation d’une formule d’Abel. Acta Math.,
vol. 4 (1884), pp. 171-176.

241. O. Tedone. Su alcune altre formole d’inversione collegate con metodo
d’integrazione di Riemann. Atti dei Lincei, vol. 29 (1), (1920), pp.
333-344.

242. O. Tedone. Su Finversione di alcuni integrali e la integrazione delle
equazioni a derivate parziali con metodo delle caratteristiche. Atti
dei Lincei, vol. 23 (1), (1914), pp. 473-480.

243. O. Tedone. Su alcune equazioni integrali di Volterra risolubili con un
numero finito di derivazioni e di integrazioni. Atti dei Lincei, vol.

23 (1), (1914), pp. 120-126.

244. O. Tedone. Sulla risoluzione di certe equazioni integrali di Volterra.
Atti dei Lincei, vol. 24 (1), (1915), pp. 544-554.

245. F. Tricomi. Su di un’equazione integrale di prima specie. Rendiconti
di Palermo, vol. 46 (1922), pp. 357-387.

246. A. Vergerio. Sulle equazioni integrali di prima specie a nucleo non-
simmetrico. Rendiconti di Palermo, vol. 42 (1917), pp. 285-302.

247. A. Vergerio. SulPequazione integrale di la specie. Atti dei Lincei,
vol. 23 (2), (1914), pp. 385-389.

248. A. Vergerio. Un’ applicazione del metodo di sommazione delle serie
alia risoluzione delle equazioni integrali. Atti dei Lincei, vol. 26 (1),
(1917), pp. 426-433.

249. A. Vergerio. Una condizione necessaria e sufficiente per l’esistenza di
soluzioni nelP equazione integrale di la specie. Atti dei Lincei, vol.

24 (1), (1915), pp. 1199-1205.

250. II. Villat. Sur certaines equations de Fredholm singulieres de premiere
espece. Comptes Rendus, vol. 166 (1918), pp. 981-984.

251. V. Volterra. Sulla inversione degli integrali definiti. Atti dei Lincei,
vol. 5 (1), (1896), pp. 177-185, 289-300. Also Atti di Torino, vol. 31
(1895-96), pp. 311-323, 400-408, 557-567, 693-708.

252. V. Volterra. Sopra alcuni questioni di inversione di integrali definiti.
Annali di Mat., vol. 25 (2), (1897), pp. 139-178.

XIV. General Equation of Third Kind

253. G. Fubini. Sulle equazioni integrali di terza specie di Emile Picard.
Atti dei Lincei, vol. 21 (1), (1912), pp. 325-330.

254. E. Garbe. Zur Theorie der Integralgleichung dritter Art. Math.
Annalen, vol. 76 (1915), pp. 527-547.

255. J. Marty. Sur un equation integrale. Comptes Rendus, vol. 150 (1),
(1910), pp. 515-518. See also Comptes Rendus, vol. 150 (1), (1910),
pp. 1031-1033, 1499-1502.

256. P. Nalli. Generalizzazione di alcuni punti della teoria delle equazioni
integrali di Fredholm. Annali di Mat., vol. 28 (3), (1919), pp. 235-261.

257. P. Nalli. Sulle equazioni integrali. Atti dei Lincei, vol. 27 (2), (1918),
pp. 118-124, 159-163, 192-196, 260-263, 316-322; vol. 28 (1), (1919), pp.
200-204.

Davis: Present Status of Integral Equations 41

258. E. Picard. Un theoreme general sur certaines equations integrates de
troisieme espece. Comptes Rendus, vol. 150 (1910), pp. 489-491. See
also vol. 152 (1911), pp. 1545-1547, and vol. 153 (1911), pp. 529-531, 615-617.

259. E. Picard. Sur les equations integrales de troisieme espece. Annales
de l’ecole normale superieure, vol. 28, 3d ser. (1911), pp. 459-472.

260. C. Platrier. Sur des solutions holomorphes de certaines equations
integrales lineaires de troisieme espece. Comptes Rendus, vol. 156
(1913), pp. 1825-1828.

261. C. Platrier. Sur des solutions meromorphes de certaines equations
integrales lineaires de troiseme espece. Comptes Rendus, vol. 157,
(1913), pp. 28-31.

262. C. Platrier. Sur les solutions de certaines equations integrales lineaires
de troisieme espece eonsiderees comme limites d’ equations de deuxieme
espece. Comptes Rendus, vol. 162 (1916), pp. 118-120.

XV. Green’s Functions

263. M. Bocher. Boundary Problems and Green’s Functions for Linear
Differential and Difference Equations. Amer. Annals of Math., vol.
13, 2d. ser. (1911-12), pp. 71-88. Also: Legons sur les methodes de
Sturm. Paris, Gauthier-Villars (1917), chap. 5.

264. G. Bouligand. Sur la fonction de Green du cylindre indefini. Comptes
Rendus, vol. 156 (1913), pp. 1361-1364.

265. G. Bouligand. Sur les fonctions de Green et de Neumann du cylindre.
Bull, de la Soc. Math. vol. 42 (1914), pp. 168-242.

266. E. Bounitzky. Sur la fonction de Green des equations differentielles
lineaires ordenaires. Journal de Math., vol. 5, 6th ser. (1909), pp. 65-125.

267. H. S. Carslaw. The Green’s Function for the Equation V2u -f k2u = 0.
Proc. London Math. Soc., vol. 13 (1913-14), pp. 236-257.

268. LL S. Carslaw. Integral Equations and the Determination of Green’s
Functions in the Theory of Potential. Proc. of the Edinburgh Math.
Soc., vol. 31 (1913), pp. 71-89.

269. G. C. Evans. Sul calcolo della funzione di Green per la equazioni
differenziali e integro-differenziali di tipo parabolico. Atti dei Lincei,
vol. 22 (1), (1913), pp. 855-860.

270. M. Gevrey. Sur la determination des fonctions de Green. Comptes
Rendus, vol. 171 (1920), pp. 610-612.

271. E. E. Levi. Sur 1’ application des equations integrales. Gottinger
Nachricten (1908), pp. 249-252.

272. P. Levy. Sur la fonction de Green relative au cylindre de revolution.
Comptes Rendus, vol. 154 (1912), pp. 1405-1407.

273. M. Mason. Randwertaufgaben bei gewohnlichen Differentialgleichungen,
Thesis, Gottingen (1903), 75 p.

274. Alexander Myller. Gewohnliche Differentialgleichungen hoherer Ord-
nung in ihrer Beziehung zu den Integralgleichungen. Thesis, Gottingen
(1906), 35 p.

275. C. E. Weatherburn. Green’s Functions for the Equation V2u — k2u = 0
and the Integration of Some Related Equations. Quart. Journal of
Math., vol. 46 (1914-15), pp. 198-215.

276. W. Westfall. Zur Theorie der Integralgleichungen. Thesis, Gottingen
(1905), 67 p.

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XVI. Hadamard’s Theorem

277. T. Boggio. Nouvelle demonstration du theoreme de M. Hadamard
sur les determinants. Bull, des Sciences Math., vol. 35, 2d ser. (1911),
pp. 113-116.

278. M. Capolla. Sul teorema di Hadamard relativo al modulo maSsimo
di un determinante. Giornale di Mat., vol. 50 (1912), pp. 355-359.

279. E. Fischer. t)ber den Hadamardschen Determinantensatz. Arkiv d.
Math. u. Phys., vol. 13 (1908), pp. 32-40.

280. J. Hadamard. Resolution d’une question relative aux determinants.
Bull, des Sciences Math., vol. 17 (1893), pp. 240-246. Also see Comptes
Rendus, vol. 116 (1893), pp. 1500-1501.

281. T. Hayashi. Demonstration elementaire du theoreme de M. Hadamard
sur la valeur maximum du determinant. Giornale di Mat., vol. 48
(1910), pp. 253-258.

282. A. Molinari. Sul teorema di Hadamard. Atti dei Lincei, vol. 22 (2),
(1913), pp. 11-12.

283. W. Wirtinger. Sur le theoreme de M. Hadamard relatif aux determi-
nants. Bull des Sciences Math., vol. 31, 2d ser. (1907), pp. 175-179.
Translation in German in Monatshefte f. Math. u. Phys., vol. 18 (1907),
pp. 158-160.

XVII. Integral Equations as Limiting Processes

284. R. D. Carmichael. Boundary Value and Expansion Problems: Formu-
lation of Various Transcendental Problems. Amer. Journal of Math.,
vol. 43 (1921), pp. 232-270.

285. R. D. Carmichael. Boundary Value and Expansion Problems: Algebraic
Basis of the Theory. Amer. Journal of Math., vol. 43 (1921), pp. 69-101.

286. H. T. Davis. The Euler Differential Equation of Infinite Order. Amer.
Math. Monthly, vol. 32 (1925), pp. 223-233.

287. T. Lalesco. Sur 1’ equation de Volterra. Journal de Math., vol. 4,
6th ser. (1908), pp. 125-202.

288. T. Lalesco. Die Theorie der linearen Integlalgleichungen von
unendlicher Ordnung. Bulet. Soc. de Stiinte, Bucarest, vol. 19 (1910),
pp. 319-330.

289. T. Lalesco. Les Equations differentielles lineaires d’ordre infini et
P equation de Fredholm. Atti dei Lincei, vol. 27 (1), (1918), pp. 432-434.

290. J. Mollerup. La determination du systeme orthogonal complet d’un
noyau donne les determinants infinis des M. R. von Koch. Bull, des
sciences math., vol. 35, 2d ser. (1911), pp. 266-273.

291. F. Schtirer. Eine gemeinsame Methode zur Behandlung gewisser

Funktionalgleichungsprobleme. Leipziger Berichte, vol. 70 (1918),

pp. 185-246.

292. V. Volterra. Sopra una proprieta generale delle equazioni integrali ed
integro-differenziali. Atti dei Lincei, vol. 20 (2), (1911), pp. 79-88.

XVIII. Integral Equations in the Complex Domain

293. G. Bertrand. Equations de Fredholm a integrates principales au sens
de Cauchy. Comptes Rendus, vol. 172 (1921), pp. 1458-1461.

Davis: Present Status of Integral Equations 43

294. G. Julia. Lignes de discontinuite des solutions de certain.es equations
de Fredholm. Journal de Math., vol. 86 (1921), pp. 195-206.

295. S. Pincherle. Sur une equation integrale dans le domaine complexe.
Comptes Rendus, vol. 172 (1921), pp. 1395-1397.

296. C. Platrier. Contribution a un theoreme sur les equations integrales de
Fredholm de troisieme espece. Comptes Rendus, vol. 154 (1912), pp.
808-811.

297. D. Pompeiu . Sur une equation integrale. Math. Annalen, vol. 74
(1913), pp. 275-277.

298. H. Villat. Sur la resolution de certaines equations integrales et sur
quelques problemes qui s’y rettachent. Acta Math., vol. 40 (1916),

pp. 101-178.

299. R. Wavre. Sur un equation de Fredholm dans le domaine complexe et
son application a la theorie des systemes d’ equations lineaires a une
infinite d’inconnues. Comptes Rendus, vol. 172 (1921), pp. 432-434.

XIX. Integral Equations With Extended Definitions of the Integral

300. C. A. Fischer. The Fredholm Theory of Stieltjes Integral Equations.
Amer. Annales of Math., vol. 25 (1924), pp. 142-158.

301. C. A. Fischer. On the Kernel of the Stieltjes Integral Corresponding
to a Completely Continuous Transformation. Amer. Journal of Math.,
vol. 44 (1922), pp. 237-246.

302. G. H. Hardy. The Theory of Cauchy’s Principal Values. (The Inte-
gration of Principal Values with Application to the Inversion of Definite
Integrals.) Proc. London Math. Soc., vol. 7, ser. 2 (1909), pp. 181-208.

303. E. W. Hobson. On Linear Integral Equations. Proc. London Math.
Soc., vol. 13 (1913-14), pp. 307-340.

304. E. W. Hobson. On the Representation of the Symmetrical Nucleus of a
Linear Integral Equation. Proc. London Math. Soc., vol. 14 (1914-15),
pp. 5-30.

305. E. E. Levi. Sulle equazioni integrali. Atti dei Lincei, vol. (16), (2),
(1907), pp. 604-612.

306. W. H. Young. On Bounded, Not Necessarily Continuous, Solutions of
Integral Equations. Quart. Journal of Math., vol. 41 (1910), pp. 175-192.

307. W. H. and Grace C. Young. On the Theorem of Riesz-Fischer. Quart.
Journal of Math., vol. 44 (1913), pp. 49-88.

XX. I ntegro -Differential Equations

308. L. Amoroso. Sopra un’equazione integro-differenziale del tipo para-
bolico. Atti dei Lincei, vol. 21 (2), (1912), pp. 141-146, 257-263. Also
see pp. 400-404.

309. G. Andreoli. Sulle »espressioni lineari integro-differenziali. Atti dei
Lincei, vol. 22 (2), (1913), pp. 409-414.

310. I. A. Barnett. Integro-Differential Equations with Constant Limits of
Integration. Bull. Amer. Math. Soc., vol. 26 (1919-20), pp. 193-203.

311. E. Daniele. Sulle equazioni differenziali e le equazioni integro-
differenziali correlative. Atti dei Lincei, vol. 26 (1), (1917), pp. 302-308.

312. G. Doetsch. Die Integro-differentialgleichungen von Faltungstypus.
Math. Annalen, vol. 89 (1923), pp. 192-207.

44

Indiana University Studies

313. G. C. Evans. Sull’ equazione integro-differenziale di tipo parabolico.
Atti dei Lincei, vol. 21 (2), (1912), pp. 25-31.

314. G. C. Evans. The Cauchy Problem for Integro-Differential Equations.
Trans. Amer. Math. Soc., vol. 15 (1914), pp. 215-226.

315. G. C. Evans. Sopra un’ equazione integro-differenziale di tipo Bocher.
Atti dei Lincei, vol. 28 (1), (1919), pp. 262-265.

316. G. C. Evans. On the Reduction of Integro-Differential Equations.
Trans. Amer. Math. Soc., vol. 15 (1914), pp. 477-496.

317. G. Fubini. Alcuni nuovi problemi di calcolo delle variazioni con
applicazioni alia teoria delle equazioni integro-differenziali. Annali
di Mat., vol. 20 (3), (1913), pp. 217-244.

318. M. F. Hu. Linear Integro-Differential Equations with a Boundary
Condition. Trans. Amer. Math. Soc., vol. 19 (1918), pp. 363-407.

319. G. Lauricella. Sulla resoluzione delle equazioni integrodifferenziali
dell’ equilibrio dei corpi elastici isotropi per dati spostamenti in super-
ficie. Atti dei Lincei, vol. 21 (1), (1912), pp. 165-174.

320. P. Levy. Les equations integro-differentielles definissant les fonctions
de lignes. Journal de l’ecole polytechnique, vol. 17, 2d ser. (1913),

pp. 1-120.

321. P. Levy. Sur les equations integro-differentielles de M. Hadamard.
Comptes Rendus, 154 (1912), pp. 56-58.

322. L. Schlesinger. Sur les equations integro-differentielles. Comptes
Rendus, vol. 158 (1914), pp. 1872-1875.

323. L. Sinigallia. Sopra una equazione integro-differenziale del tipo
ellittico. Atti dei Lincei, vol. 24 (1), (1915), pp. 325-330.

324. A. Vergerio. Sopra un tipo di equazioni integro-differenziali. Atti
dei Lincei, vol. 28 (1), (1919), pp. 274-276.

325. V. Voltera. Sur les equations integro-differentielles et leurs applications
Acta Math., vol. 35 (1912), pp. 295-356.

326. V. Volterra. Equazioni integro-differenziali con limiti constanti. Atti
dei Lincei, vol. 20 (1), (1911), pp. 95-99.

327. V. Volterra. Sopra equazioni integro-differenziali aventi i limiti
constanti. Atti dei Lincei, vol. 22 (2), (1913), pp. 43-49.

328. V. Volterra. Sulle equazioni integro-differenziali. Atti dei Lincei,
vol. 18 (1), (1909), pp. 167-174.

329. V. Volterra. Osservazioni sulle equazioni integro-differenziali ed
integrali. Atti dei Lincei, vol. 19 (1910), pp. 361-363.

330. V. Volterra. Questioni generali sulle equazioni integrali ed integro-
differenziali. Atti dei Lincei, vol. 19 (1910), pp. 169-180.

331. V. Volterra. Soluzione delle equazioni integro-differenziali dell’
elasticity nel caso di una sfera isotropa. Atti dei Lincei, vol. 19 (1910),
pp. 107-114.

332. V. Volterra. Equazioni integro-differenziali ed equazioni alle derivate
funzionali. Atti dei Lincei, vol. 23 (1), (1914), pp. 551-557.

333. N. Zeilon. Sulle soluzioni fondamentali delle equazioni integro-
differenziali. Atti dei Lincei, vol. 24 (1), (1915), pp. 584-587, 801-806.

XXI. Mixed Linear Equations — Andreoli’s Equation

334. G. Andreoli. Sule equazioni integrali ed integro-differenziali di tipo
piu generale di quelle considerate da Volterra e Fredholm. Giornale di
Mat., vol. 53 (1915), pp. 97-135.

Davis: Present Status of Integral Equations

45

335. G. And red i. ■ Sulle equazioni integral!. Atti dei Lincei, vol. 22 (1),
(1913), pp. 776-781.

336. G. Andreoli. Sulle equazioni integral!, Rendieonti di Palermo, vol.
37 (1914), pp. 76-112.

337. G. Andreoli. Sulle pm general! equazioni integrali ed integro-
differenziali ad una variabile. Atti dei Lincei, vol. 23 (2), (1914), pp.
196-201.

.338. G. Andreoli. Su certe equazioni integral! del Kneser e sulla loro
generalizzazione. Atti dei Lincei, vol. 23 (2), (1914), pp. 159-162.

339. G. Bratu. Sur les equations mixtes lineaires. Comptes Rendus, vol.
148 (1909), pp. 1370-1373.

340. W. A. Hurwitz. Note on Mixed Linear Integral Equations. Bull.
Amer. Math. Soc., vol. 18 (1911-12), pp. 291-294.

341. W. A. Hurwitz. Mixed Linear Integral Equations of the First Order.
Trans. Amer. Math. Soc., vol. 16 (1915), pp. 121-133.

342. A. Kneser. Belastete Integralgleichungen. Rendieonti di Palermo,
vol. 37 (1914), pp. 169-197.

343. P. Nalli. Sopra un’equazione integrate. Rendieonti di Palermo, vol.
46 (1922), pp. 261-264.

344. M. Picone. Sulle equazioni integrali a limiti variabili. Giornale di
Mat., vol. 49 (1911), pp. 173-180.

345. N. Prapergescu. Sur les equations mixtes lineaires. Buletinul Soc. de
Stunte (Bucarest), vol. 20 (1911), pp. 6-10.

XXII. Non-Linear Equations

346. R. D’Adhemar. Les fonctions implicites en nombre infini et 1’ equation
integrale non lineaire. Bull. Soc. Math, de France, vol. 36 (1908), pp.
195-204.

347. H. Block. Sur la solution de certaines equations integrates. Arkiv
for Mat., Astr., och Fys., vol. 3 (1907), no. 22, 18 p.

348. G. Bratu. Sur certaines equations integrales non lineaires. Comptes
Rendus, vol. 150 (1), (1910), pp. 896-899.

349. G. Bratu. Stir les equations integrales non lineaires. Bull, de la Soc.
Math., vol. 41 (1913), pp. 346-350; vol. 42 (1914), pp. 113-142.

350. G . Bucht. - Uber nichtlineare Integralgleichungen mit unverzweigten
Losung. Arkiv for Mat., Astro., och Fys., vol. 8 (1912-13), no. 8, 20 p.

35 i; A. Collet. Sur les solutions approchees de certaines equations integrales
non lineaires. Annales de Toulouse, vol. -4, 3d ser. (1912), pp. 199-249.

352. H. Galajikian. On Certain Non-Linear Integral Equations. Bull.
Amer. Math. Soc., vol. 19 (1912-13), pp. 342-346.

353. H. Galajikian. Non-linear Integral Equations of the Volterra Type.
Amer. Annals of Math., vol. 16, 2d ser. (1914-15), pp. 172-192.

354. P. Levy, Sur les equations integrales non lineaires. Comptes Rendus,
vol. 150 (1), (1910), pp. 899-901.

355. L. Orlando. Sulle equazioni integrali. Giornale di Battaglini, vol.

46 <1908),' "pp. 173-196. .

356. L. Orlando. Sopra alcune equazioni integrali. Atti dei Lincei, vol.
16 (2), (1907), pp. 601-604.

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Indiana University Studies

357. M. Picone. Sulle equazioni alle derivate parziali del second’ ordine del
tipo iperbolico in due variabili indipendenti. Rendiconti di Palermo,
vol. 30 (1910), pp. 349-376.

358. E. Schmidt. Zur Theorie der linearen und nicht linearen Integral-
gleichungen. Math. Annalen, vol. 63 (1907), pp. 433-476; vol. 64 (1907),
pp. 161-174; vol. 65 (1908), pp. 370-399.

359. A. Vergerio. Sulle equazioni integrali non lineari con operazioni
funzionali singolari. Giornale di Mat., vol. 59 (1921), pp. 175-214.

360. A. Vergerio. Sulle equazioni integrali non lineari. Annali di Mat.,
vol. 31 (1922), pp. 81-119.

XXIII. Numerical Solution of Integral Equations

361. F. L. Hitchcock. A Method for the Numerical Solution of Integral
Equations. Bull. no. 54, Dept, of Math., Mass. Inst, of Tech. (1923).

362. E. T. Whittaker. On the Numerical Solution of Integral Equations.
Proc. Royal Soc. of London, vol. 94 (A), (1917-18), pp. 367-383.

XXIV. Orthogonal and Biorthogonal Functions

363. G. D. Birkhoff. A Theorem on Series of Orthogonal Functions with an
Application to Sturm-Liouville Series. Proc. Amer. Nat. Acad. vol.
3 (1917), pp. 656-659.

364. E. Fischer. Sur la convergence en moyenne. Comptes Rendus, vol. 144
(1907), pp. 1022-1024.

365. A. Haar. Zur Theorie der orthogonalen Funktionensysteme. Thesis.
Gottingen (1909); also Math. Annalen, vol. 69 (1910), pp. 331-371.

366. O. D. Kellogg. On the Existence and Closure of Sets of Characteristic
Functions. Math. Annalen, vol. 86 (1922), pp. 14-17.

367. O. D. Kellogg. Orthogonal Function Sets Arising from Integral
Equations. Amer. Journal of Math., vol. 40 (1918), pp. 145-154.

368. G. Lauricella. Sulla chiusura dei sistemi di funzioni ortogonali e dei
nuclei delle equazioni integrali. Atti dei Lincei, vol. 21 (1), (1912),
pp. 675-685.

369. A. J. Pell. Applications of Biorthogonal Systems of Functions to the
Theory of Integral Equations. Trans. Amer. Math. Soc., vol. 12 (1911),
pp. 165-180.

370. A. J. Pell. Linear Equations with Unsymmetric Systems of Coefficients.
Trans. Amer. Math. Soc., vol. 20 (1919), pp. 23-39.

371. A. J. Pell. Biorthogonal Systems of Functions. Trans. Amer. Math.
Soc. vol. 12 (1911), pp. 135-164.

372. M. Plancherel. Satze liber Systeme beschrankter Orthogonal-funk-
tionen. Math. Annalen, vol. 68 (1910), pp. 270-278.

373. F. Riesz. Sur les systemes orthogonaux et 1’ equation de Fredholm.
Comptes Rendus, voi. 144 (1907), pp. 615-619, 734-736.

374. L. Silla. Sopra alcune applicazioni della teoria della chiusura dei
sistemi di funzioni ortagonali. Atti dei Lincei, vol. 23 (1), (1914), pp.
600-607.

375. W. Stekloff. Sur la condition de fermeture des systemes de fonctions
orthogonales. Comptes Rendus, vol. 151 (1910), pp. 1116-1119.

376. G. Vitali. Sulla condizione di chiusura di un sistema di funzioni orto-
gonali. Atti dei Lincei, vol. 30 (2), (1921), pp. 498-501.

Davis: Present Status of Integral Equations 47

377. J... L. Walsh. A Property of Haar’s System of Orthogonal Functions.
Math, Annalen,. vol. 90 (1923), ; pp. 38-45.

. * XXV. Pemiutable Functions

378. G. Andreoli. Sulla risoluzione di certe equazioni di composizione di
seconda specie. Atti dei Lincei, vol. 25 (2), (1916), pp. 360-366. Also
vol. 26 (1), (1917), pp. 234-239.

379. G. Andreoli. Sulla soluzione generale di una classe di equazioni di
composizione. Atti dei Lincei, vol. 25 (2), (1916), pp. 427-433.

380. G. C. Evans. Sul calcolo del nucleo dell’ equazione resolvente per una
data equazione integrale. Atti dei Lincei, vol. 20 (2), (1911), pp. 453-460.

381. G. C. Evans. Applicazione dell’ algebra della funzioni permutabili al
calcolo delle funzioni associate. Atti dei Lincei, vol. 20 (2), (1911),
pp. 688-694.

382.1 'G. Giorgi. Sulla teoria della equazioni integrali e delle lors
generalizzare. Atti dei Lincei, vol. 21 (1), (1912), pp. 748-754.

383. G. Lauricella. Sopra l’algebra delle funzioni permutabili di 2a specie.
Annali di Mat;, vol. 21 (3), (1913), pp. 317-351.

384. G. Lauricella. Sopra le funzioni permutabili di 2a specie. Atti dei
Lincei, vol. 22 (1), (1913), pp. 331-346.

385. H. Lebesgue. Sur un theoreme de M. Volterra. Bull, de la Soc. Math.,
vol. 40 (1912), pp. 238-244.

386. J. Peres. Transformation qui conservent la composition. Atti dei
Lincei, vol. 30 (1), (1921), pp. 318-322, 344-348.

387. J. Peres. Sur les fonctions permutables analytiques. Atti dei Lincei,
vol. 22 (2), (1913), pp. 649-654; vol. 23 (1), (1914), pp. 870-873.

388. J. Peres. Determination de toutes les fonctions permutables de
premiere espece avec une fonction donnee. Comptes Rendus, vol. 156
(1913), pp. 378-381.

389. J. Peres. Sur les fonctions permutables de premiere espece de M.
Volterra. Journal de Math., vol. 80 (1915), pp. 1-99.

390. L. Sinigallia. Sulle funzioni permutabili di seconda specie. Atti dei
Lincei, vol. 20 (1), (1911), pp. 563-569; vol. 20 (2), (1911), pp. 460-465;
vol. 21 (21, (1912), pp. 831-837; vol. 22 (1), (1913), pp. 70-76.

391. J. Soula. Sur la permutabilite du deuxieme espece. Atti dei Lincei,
vol. 21 (2), (1912), pp. 425-431.

392. V. Volterra. Sopra le funzioni permutabili di 2a specie e le equazioni
integrali. Atti dei Lincei, vol. 20 (1), (1911), pp. 521-527.

393. V. Volterra. Contributo alio studio delle funzioni permutabili. Atti
dei Lincei, vol. 20 (1), (1911), pp. 296-304.

394. V. Volterra. Sopra le funzioni permutabili. Atti dei Lincei, vol. 19
(1910), pp. 425-437.

XXVI. Properties of Characteristic Numbers

395. H. Bateman. The Reality of the Roots of Certain Transcendental
Equations Occurring in the Theory of Integral Equations. Trans,
of the Cambridge Phil. Soc., vol. 20 (1907), pp. 371-382.

396. T. Carleman. Sur la distribution cles valeurs singulieres d’une classe
- des noyaux infinis. - Arkiv for Mat., Astro., och Fys., vol. 13 (1918-19),

No. 6, 7 p.

48

Indiana University Studies

397. H. T. Davis. Relating to the Proof of an Existence Theorem for a
Certain Type of Boundary Value Problem. Bull. Amer. Math. Soc.,
vol. 28 (1921-22), pp. 390-394.

398. Ph. Frank. Sur revaluation approximative de la plus petite valeur
caracteristique de quelques equations integrales. Comptes Rendus,
vol. 158 (1914), pp. 551-554.

399. G. Fubini. Equazioni integrali e valori eccezionali. Annali di Mat.,
vol. 17, 3d ser. (1910), pp. 111-139.

400. E. Goursat. Sur quelques proprietes des equations integrales. Comptes
Rendus, vol. 145 (1907), pp. 752-754.

401. E. Goursat. Sur les equations integrales. Comptes Rendus, vol. 145
(1907), pp. 667-670.

402. A. Kneser. Ein Beitrag zur Theorie der Integralgleichungen. Rendi-
conti di Palermo, vol. 22 (1906), pp. 233-240.

403. T. Lalesco. Theoreme sur les valeurs caracteristiques. Comptes
Rendus, vol. 153 (1911), pp. 541-542.

404. E. Laura. Sopra gli autovalori delle equazioni integrali a nucleo non
simmetrico. Atti dei Lincei, vol. 20 (2), (1911), pp. 559-562.

405. J. Marty. Contribution a la theorie elementaire des equations integrales.
Annales de Toulouse, vol. 5, ser. 3 (1913), pp. 259-268.

406. I. Schur. Uber die characteristischen Wurzeln einer linearen Substi-
tution m it einer Anwendung auf die Theorie der Integralgleichung.
Math. Annalen, vol. 66 (1909), pp. 488-510.

407. I. Schur. Zur Theorie der linearen homogene Integralgleichungen.
Math. Annalen, vol. 67 (1909), pp. 306-339.

408. H. Weyl. Uber die asymptotische Vertheilung der Eigenwerte.
Gottinger Nachrichten (1911), pp. 110-117.

XXVII. Representation of Functions by Series and Integrals

409. L. Amoroso. Alcune osservazioni intorno alia teoria delle serie di
Fourier-Hilbert-Schmidt. Atti dei Lincei, vol. 19 (2), (1910), pp.
265-269.

410. H. Bateman. The Application of Integral Equations to the Determina-
tion of Expansions in Series of Oscillating Functions. Trans, of the
Cambridge Phil. Soc., vol. 20 (1907), pp. 281-290.

411. A. C. Dixon. On the Series of Sturm and Liouville as Derived from a
Pair of Fundamental Integral Equations instead of a Differential
Equation. Phil. Trans, of the Royal Soc., vol. 211 (A), (1911), pp.
411-432.

412. E. Juretzka. Die Entwicklung unstetiger Funktionen nach den
Eigenfunktionen des schwingenden Stabes auf Grund der Theorie der
Integralgleichungen. Thesis (Breslau), (1909), 52 p.

413. A. Kneser. Integralgleichungen lind Darstellung willkiirlicher Funk-

tionen von zwei Variabeln. Rendiconti di Palermo, vol. 27 (1909),
pp. 117-147. -

414. A. Kneser. Die Theorie der Integralgleichungen und die Darstellung
willkiirlicher Funktionen in der mathematischen Physik. Math.
Annalen, vol. 63 (1907), pp. 477-524.

415. N. Kryloff. Sur les developpements procedant suivant les polynqjpes
hypergcometriques. Comptes Rendus, vol. 150 (1910), pp. 316-318.

Davis: Present Status of Integral Equations 49

41G. J. Liouville. Sur le developpement des fonctions ou parties de fonctions
en series dont les divers termes sont assujettes a satisfaire a une meme
equation differentielle du second ordre, contenant un parametre variable.
Journal de Math., vol. 1 (1836), pp. 253-265; voL 2 (1837), pp. 6-35, 418-436.

417. J. Liouville. Premier memoire sur la theorie des equations differen-
tielles lineaires et sur le developpement des fonctions en series. Journal
de Math., vol. 3 (1836), pp. 561-614.

418. J. Marty. Developpement suivant eertaines solutions singulieres.
Comptes Rendus, vol. 150 (1910), pp. 603-606.

419. J. Mercer. Sturm-Liouville Series of Normal Functions in the Theory
of Integral Equations. Phil. Trans, of the Royal Soc., vol. 211 (A),
(1911), pp. 111-198.

420. F. H. Murray. The Asymptotic Expansion of the Sturm-Liouville
Functions. Amer. Annals of Math., vol. 22, 2d ser. (1920-21), pp. 145-156.

421. W. Myller-Lebedeff. Die Integralgleichungen in Anwendung auf einige
Reihenentwicklungen. Math. Annalen, vol. 64 (1907), pp. 388-416.

422. P. Nalli. Sulla rappresentazioni di una funzione simmetrica K(s,t)

/b

K(s,t) g(t) dt. Rendiconti di Palermo,

vol. 43 (1918-19), pp. 105-124. *

423. E. Picard. Sur une classe de fonctions fondamentales et sur certains
dGveloppements en series. Annales de Tecole normale superieure, vol.
27, 3d ser. (1910), pp. 569-574.

424. M. Plancherel. Integraldarstellungen willkiirlicher Funktionen. Math.
Annalen, vol. 67 (1909), pp. 519-534.

425. M. Plancherel. Sur la representation d’une fonction arbitraire par une
integrate definie. Comptes Rendus, vol. 150 (1910), pp. 318-321.

426. M. Plancherel. Contribution a l’etude de la representation d’une
fonction aribtraire par des integrates definies. Rendiconti di Palermo,
vol. 30 (1910), pp. 289-335.

427. K. Popoff. Sur les conditions pecessaires et suffisantes pour qu’une
fonction F(x) puisse etremise sous la form f(x)dx oil f(x) est de carre
integrable. Math. Annalen, vol. 86 (1922), pp. 154-157.

428. E. Schimdt. Entwicklung willkiirlicher Funktionen nach Systemen
vorgeschriebener. Thesis, (Gottingen) (1905), 33 p. See also Math.
Annalen, vol. 63 (1907), pp. 433-476. (Ref. 358.)

429. W. Stekloff. Une application nouvelle de ma methode de developpement
des fonctions fondamentales. Comptes Rendus, vol. 151 (1910), pp.
974-977. See also Comptes Rendus, vol. 150, pp. 601-603; vol. 151, pp.
800-802.

430. H. Weyl. Uber die Ivonvergenz von Reihen die nach Orthogonal-
funktionen fortschreiten. Math. Annalen, vol. 67 (1909), pp. 225-245.

XXVIII. Singular Integral Equations

431. R. D’Adhemar. Sur les equations integrales de M. Volterra. Atti del
IV Congresso (Roma), vol. 2 (1908), pp. 115-121.

432. G. Andreoli. Equazioni integrali singolari con nuclei analoghi a quelli
di Evans. Atti dei Lincei, vol. 26 (1), (1917), pp. 289-295.

433. G. Andreoli. Sovra una particolare classe di equazioni integrali singo-
lari. A\ti dei Lincei, vol. 26 (1), (1917), pp. 531-538.

50

Indiana University Studies

434. T. Carleman. Sur les equations integrales singulieres a noyau reel et
symetrique. Comptes Rendus, vol. 171 (1920), pp. 383-386.

435. A. C. Dixon. . Soine Limiting Cases in the Theory. of Integral Equations.
Procr. London ‘MathCSoc., vol. 22 (1923), pp. 201-222.

436. G. C. Evans. Sopra l’equazione integrale di seconds specie con un
limite dell’integrale infinito. Atti dei Lincei, vol. 20 (1), (1911), pp.
409-415, 656-662; vol. 20 (2), pp. 7-11.

437. G. C. Evans. The Integral Equation of the Second Kind of Volterra
with Singular Kernel. Bull. Amer. Math. Soc., vol. 16 (1909), pp.
130-136.

438. G. C. Evans. Volterra’s Integral Equation of the Second Kind with
Discontinuous Kernel. Trans. Amer. Math. Soc., vol. 11 (1910), pp.
393-413; second paper, vol. 12 (1911), pp. 429-472.

439. E. Goursat. Sur quelques equations integrales singulieres. Comptes
Rendus, vol. 157 (1913), pp. 843-846.

440. G. H. Hardy and E. C. Titchmarsh. Solutions of Some Integral Equa-
tions Considered by Bateman, Kapteyn, Littlewood, and Milne. Proc.
of the London Math. Soc., vol. 23, 2d ser. (1924), pp. 1-26.

441. G. H. Hardy. On an Integral Equation. Proc. London Math. Soc.,
vol. 7 (1909), pp. 445-472.

442. O. D. Kellogg. Unstetigkeiten in der linearen Integralgleichungen.
Math. Annalen, vol. 58 (1904), pp. 441-456.

443. O. D. Kellogg. Zur Theorie der Integralgleichungen und das DirichleU
schen Princips. Thesis. (Gottingen). (1902), 43 p.

444. C. E. Love. Note on a Class of Integral Equations of the Second Kind.
Amer. Annals of Math., vol. 21, 2d ser. (1919-20), pp. 104-112.

415. C. E. Love. Singular Integral Equations of the Volterra Type. Trans.
Amer. Math. Soc., vol. 15 (1914), pp. 467-476.

446. F. Noether. Uber eine Klasse singularer Integralgleichungen. Math.
Annalen, vol. 82 (1920-21), pp. 42-63.

447. E. Picard. Sur une equation fonctionnelle singuliere du type Fredholm.
Comptes Rendus, vol. 151 (1910), pp. 606-610; vol. 152 (1911), pp. 61-63.

448. E. Picard. Sur un example simple d’une equation singuliere de Fredholm.
Annales de l’ecole normale superieure, vol. 28, 3d ser. (1911), pp. 313-324.

449. M. Picone. Sulla equazione integrale di Fredholm a nucleo non
limitato. Atti dei Lincei, vol. 30 (2), (1921), pp. 90-92.

450. M. Plancherel. Note sur les equations integrales singulieres. Revista
di fis. , mat. e sc. naturali (Pavia), vol. 10 (1909), pp. 37-53.

451. M. Plancherel. Uber singulare Integralgleichungen. Math. Annalen,
vol. 67 (1909), pp. 515-518.

452. H. PoincarA Remarques sur l’equation de Fredholm. Comptes
Rendus, vol. 147 (1908), pp. 1367-1371.

453. H. Villat. Sur certaines equations integrales possedant une infinite
de solutions avee un nombre illimite de parametres arbitrages. Comptes
Rendus, vol. 173 (1921), pp. 816-818.

454. H. Weyl. Singulare Integralgleichungen. Math. Annalen, , yol. 66

(1908), pp. 273-324. ' ’ ; .

455. H. Weyl. Singulare Integralgleichungen mit besonderer Berticksich-
tigung des Fourierschen Integraltheorems. Thesis (Gottingen), (1908),

86 p.

Davis: Present Status of Integral Equations

51

456. B. M. Wilson. On an Extension of Milne’s Integral Equation. The
Messenger of Math., vol. 53 (l’924)v PP- 157-160.

457. F. S', Zarlatti. Shr quelques equations integrales singulieres. Comptes
Rendus, vol, 157 (1913), pp. 198-201,

458. S. Zarlatti. Sopra alcune equazioni integrali singolari. Giornale di
Mat., vol. 52 (1914), pp. 187-203.

XXIX. Systems of Integral Equations

459. E. Bounitzky. Un systeme particulier d’equations integrales. Bull.
Soc. Math, de France, vol. 31 (1907), pp. 121-128.

460. L. Brand. On Infinite Systems of Linear Integral Equations. Amer.
Annals of Math., vol. 14, 2d ser. (1912-13 ), pp. 101-118.

461. Margaret Buchanan. Systems of Two Linear Integral Equations with
Two Parameters and Symmetrizable Kernels. Amer. Journal of Math.,
vol. 45 (1923), pp. 155-185.

462. C. Cailler. Sur un cas particulier du probleme de P elimination entre
plusieurs equations integrales. L’ensignement mathematique, vol.
15 (1913), pp. 33-47.

463. S. Kakeya. On Some Integral Equations. Tohoku Math. Journal,
vol. 4 (1914), pp. 186-190; vol. 8 (1915), pp. 14-23. Also Proc. of Tokyo
Math.-Phys. Soc., vol. 8, 2d ser. (1915-16), pp. 83-102, 408-419; vol. 9,

, 2d ser. (1917-18), pp. 93-100.

464. A. J. Pell. Linear Equations with Two Parameters. Trans. Amer.
Math. Soc., vol. 23 (1922), pp. 198-211.

465. C. Platrier. Sur les mineurs de la fonction de Fredholm et sur les
systemes, d’ equations intjegrales lineaires. Journal de math., vol. 9,
6th ser. (1913), pp. 233-304.

466. F. Riesz. Sur certain? systemes singuliers d’equations integrales.

Annales de l’ecole normale superieure, vol. 28, 3d ser. (1911), pp. 33-62.

467. L. Silla. Sui sistemi di, equazioni integrali di prima specie. Atti dei
Lincei, vol. 22 (2), .(1913'),,pp. 13-20.

468. H. Villat. Sur certains systemes d’equations de Fredholm. Bull,

des Sciences math., vol. 43, 2d ser. (1919), pp. 18-24, 25-48.

XXX. Volt'erra Equations of Second Kind

469. C. Cailler. Sur un cas particulier, etc. See ref. 462.

470. T. Kameda. A Method for Solving Some Integral Equations. Tohoku

Math., Journal, vol. 23 (1924), pp. 197-209.

471. L. Orlando. Sulle equazioni integrali. Atti dei Lincei, vol. 24 (1),
i(i915), pp. 1040-1041.

472. G. Usai. Sopra un’equazione integrale. Giornale di Mat., vol. 56
(1918), pp. 209-215.

1 Addenda

473. H. Bateman. The Theory of Integral Equations. Proc. London Math.
Soc., vol. 4, 2d ser. (1906), pp. 90-115.

474. H. Bateman. Notes on Integral Equations. Messenger of Math.,
vol. 38 (1908), pp. 8-13, 70-76; vol. 39 (1909), pp. 6-19, 129-135, 173-178,
182-191; vol. 41 (1911), pp. 94-101, 180-184.

52

Indiana University Studies

475. H. Bateman. On the Application of Integral Equations to the
Determination of Upper and Lower Limits to the Value of a Double
Integral. Trans. Cambridge Phil. Soc., vol. 21 (1908), pp. 123-128.

476. M. Bocher. A Simple Proof of a Fundamental Theorem in the Theory
of Integral Equations. Amer. Annales of Math., vol. 14, 2d ser. (191,2-13),
pp. 84-85.

477. W. C. Brenke. An Application of AbePs Integral Equation. Amer.
Math. Monthly, vol. 29 (1922), pp. 58-60.

478. G. C. Evans. The Mathematical Theory of Economics. Amer. Math.
Monthly, vol. 32 (1925), pp. 104-110.

479. E. Hilb. Uber Integraldarstellungen willkurlicher Funktionen. Math.
Annalen, vol. 66 (1909), pp. 1-66.

480. G. Landsberg. Theorie der Elementarteilen linearer Integralgleiehungen .
Math. Annalen, vol. 69 (1910), pp. 227-265.

481. G. Lauricella. Sulle equazioni integrali. Annali di Mat., vol. 15 (1908),
pp. 21-45.

482. J. Liouville. Solution d’un probleme d’analyse. Journal de Math.,
vol. 2 (1837), pp. 1-2.

483. L. Orlando. Sulle equazioni differenziali lineari. Atti dei Lincei,
vol. 17 (1), (1908), pp. 587-589.

484. M. Plancherel. La theorie des equations integrates. L’enseignement
mathematique, vol. 14 (1912), pp. 89-107.

485. F. Riesz. Uber lineare Funktionalgleichungen. Acta Mathematica,
vol. 41 (1918), pp. 71-98.

486. F. Riesz. Uber die lineare homogene Integralgleichung. Math, es
termesz. ert. (Budapest), vol. 27 (1909), pp. 220-240.

487. G. Sannia. Risoluzione dell’ equazione di Fredholm con serie assolu-
tamente sommabili del Borel. Atti dei Lincei, vol. 28 (2), (1919),
pp. 429-433.

488. C. Severini. Sulla theoria di chiusura dei sistemi di funzioni ortogonali.
Rendiconti di Palermo, vol. 36 (1913), pp. 177-202.

489. L. Tocchi. Sopra una generalizzizione della deseguaglianza di Schwarz.
Giornale di Mat., vol. 59 (1921), pp. 115-122.

490. V. Volterra. Functions of Composition. Rice Institute Pamphlet,
vol. 7 (1920), pp. 181-251.

491. C. F. Roos. A Mathematical Theory of Competition. Amer. Journal
of Math., vol. 47 (1925), pp. 163-175.

492. H. Hotelling. A . General Mathematical Theory of Depreciation.
Journal Amer. Statistical Assn., vol. 20 (1925), pp. 340-353.

493. J. R. Carson. The Heavyside Operational Calculus. Bull. Amer. Math.
Soc., vol. 32 (1926), pp. 43-68.

494. J. R. Carson. Electric Circuit Theory and the Operational Calculus.
The Bell System Tech. Journal, vol. 4 (1925), pp. 685-761; vol. 5 (1926),
pp. 50-95.

495. V. Volterra. Logons sur la composition et les functions permutables.
Paris, Gauthier-Villars (1924), 179 pp.

Name Index

(Numbers in italics refer to pages; others refer to the Bibliography).

Abel, N. H. 21, 198; 7, 9.
d’Adhemar, R. 1, 2, 3, 126, 346, 431.
Amoroso, L. 199, 200, 201, 308, 409; 14-
Andreoli, G. 105, 309, 334, 335, 336,
337, 338, 378, 379, 432, 433; 5, 16.
Anghelutza, T. 106.

Anzelius, A. 22.

Appell, P. 13.
d’Arone, G. D. 127.

Barnett, I. A. 310.

Bateman, H. 4, 23, 100, 128, 129, 193,
194, 202, 203, 395, 410, 473, 474,
475; 4, 7, 14, 25.

Baticle, E. 24; 26.

Berg, E. G. 25.

Bernstein, F. 85, 86.

Bertrand, G. 25, 26, 27, 293; 24, 25.
Birkhoff, G. D. 89, 363; 13.

Block, H. 347.

Blondel, A. 101.

Bocher, M. 5, 263, 476.

Boggio, T. 107, 130, 277.
du Bois-Reymond, P. 10, 22.

Borel, E. 7.

Bouligand, G. 264, 265.

Bounitsky, E. 171, 266, 459; 16.
Bourlet, C. 15, 18.

Brand, L. 460.

Bratu, G. 339, 348, 349; 15.

Brenke, W. C. 477.

Browne, P. 172, 173, 174, 204, 205; 16.
Buchanan, Margaret 461.

Bucht, G. 350.

Burgatti, P. 206.

Cailler, C. 462, 469.

Capolla, M. 278.

Caque, J. 9.

Carleman, T. 108, 131, 162, 396, 434.
Carmichael, R. D. 284, 285; 11.
Carslaw, H. S. 28, 195, 267, 268; 25.'

Carson, J. R. 29, 30, 78, 493, 494; 8, 25.
Cauchy, A. L. 21, 25.

Cesaro, E. 175; 16.

Charlier, C. V. L. 31; 26.

Chicca, A. 109.

Collet, A. 351.

Cotton, E. 90.

Courant, R. 132.

Crudeli, U. 176; 16.

Daniele, E. 110, 311.

Daniell, P. J. 207.

Davis, H. T. 79, 286, 397; 18.
Dirichlet, P. G. L. 12, 24 .

Dixon, A. C. 133, 411, 435.

Doetsch, G. 86, 312.

Euler, L. 18.

Evans, G. C. 32, 111, 269, 313, 314,
315, 316, 380, 381, 436, 437, 438,
478; 19,20,26.

Fischer, C. A. 300, 301; 19.

Fischer, E. 279, 364; 14.

Fourier, J. 8, 14.

Frank, Ph. 33, 398.

Frechet, M. 8; 12, 24.

Fredholm, I. 34, 35, 36, 37, 134, 135,
136, 137, 208; 3, 5, 9, 10, 11, 12, 13,
14, 15, 18, 20, 21, 22, 23, 24, 25.
Fubini, G. 177, 178, 209, 253, 317, 399;
16.

Galajikian, H. 352, 353; 16.

Garbe, E. 254.

Gateau, R. 74.

Gevrey, M. 91, 270.

Giorgi, G. 382.

Goursat, E. 6, 112, 113, 138, 139, 210,
400, 401, 439; 14.

Green, G. 12, 22.

Gronwall, T. H. 102.

(53)

54

Indiana University Studies

Haar, A. 365.

Hadamard, J. 38, 280; 12, 25.

Hahn, H. 7.

Hardy, G. H. 302, 440, 441; 14, 21'.
Haseman, C. 87.

Hayashi, T. 39, 40, 41, 211, 281; 25, 26.
Heavyside, O. 8, 25.

Hellinger, H. 13, 20.

Herglotz, G. 42; 25.

Hertz, P. 43; 25.

Hermite, C. 21.

Heywood, H. B. 8, 114, 140; 12, 24.
Hilb, E. 479; 13, 18, 20.

Hilbert, D. 9, 44; 5, 12, 13, 18, 20, 22,
24, 27.

Hildebrandt, T. H. 163.

Hill, G. W. 13.

Hirakawa, N. 212.

Hitchcock, F. L. 80, 361; 21.

Hobson, E. W. 303, 304; 19.

Holmgren, E. 45, 141, 142, 213, 214; 20.
Horn, J. 10, 179, 215; 16, 20, 24.
Hotelling, H. 492; 26.

Hu, M. F. 318.

Humbert, P. 216, 217; 8.

Hurwitz, W. A. 143, 164, 340, 341; 16.

Jager, F. 46.

Jentzsch, It. 115.

Julia, G. 144, 294; 21.

Juretzka, E. 412.

Kakeya, S. 463.

Kameda, T. 470.

Kampe de Feriet, J. 145.

Kellogg, O. 103, 366, 367, 442, 443; 21,
24.

Kneser, A. 11, 47, 342, 402, 413, 414;

6, 14, 16, 25.
von Koch, H. 13.

Konig, It. 88, 116.

Korn, A. 12, 117, 118, 146.
Koschmieder, L. 48; 25.

Kowalewski, G. 13.

Kryloff, N. 119, 415.

Lalesco, T. 14, 92, 120, 121, 147, 148,
149, 150, 165, 166, 218, 287, 288,
289, 403; 15, 17, 18, 20.

Landsberg, G. 480.

Laplace, P. S .7,8,10, 24, 25.

Laudien, H. 49; 25.

Laura, E. 122, 404.

Lauricella, G. 50, 123, 180, 219, 220,
319, 368, 383, 384, 481; 14, 16, 24.
Lebesgue, H. 151, 385; 7, 14, 19.
Lerch, M. 8.

Le Roux, J. 221; 10.

Levi, E. E. 271, 305; 19.

Levi-Civita, T. 222; 10.

L6vy, P. 51, 81, 152, 272, 320, 321, 354,
481; 24.

Liouville, J. 53, 416, 417, 482; 8, 9, 10,
12, 13, 14, 25.

Love, C. E. 444, 445.

Lovitt, W. V. 15.

Marcolongo, R. 54; 25.

Marty, J. 167, 255, 405, 418.

Mason, M. 273; 12.

Mercer, H. 153.

Mercer, J. 196, 419; 14.

Molinari, A. 282.

Mollerup, J. 168, 223, 290.

Moore, E. H. 75; 19.

Muntz, C. H. 224.

Murphy, R. 9.

Murray, F. H. 420.

Myller, A. 154, 274.

Myller-Lebedeff, W. 52, 421; 14.

Nalli, P. 181, 256, 257, 343, 422; 16.
Neumann, F. E. 24.

Noether, F. 446.

Orlando, L. 155, 355, 356, 471, 483.
Oseen, C. W. 55.

Pell, A. J. 76, 369, 370, 371, 464; 14-
Peres, J. 82, 386, 387, 388, 389.

Perron, O. 18.

Picard, E. 56, 57, 58, 59, 60, 61, 62, 93,
225, 226, 227, 228, 229, 258, 259,
423, 447, 448; 14, 20, 21, 24, 25, 26.
Picone, M. 230, 344, 357, 449.

Pidduck, F. B. 63.

Pincherle, S. 16, 83, 182, 231, 232, 295;
15, 16, 18.

Plancherel, M. 372, 424, 425, 426, 450,
451, 484; 14, 20.

Platrier, C. 156, 183, 260, 261, 262,
296, 465; 16.

Davis: Present Status of Integral Equations

Plcmelj, J. 64, 157; 21+.

Poincare, H. 17, 65, 158, 233, 452; 3,
13, 25.

Poisson, S. D. 9.

P61ya, G. 184; 16.

Pompeiu, D. 297; 21.

Poole, E. G. C. 66, 94.

Popoff, K. 234, 427.

Popovici, C. 185, 235; 16.
Prapergescu, N. 345.

Proszynski, A. 124.

Riemann, G. F. B. 8, 9.

Riesz, F. 373, 466, 485, 486; 13, 11+.
Risser, 67.

Roos, C. F. 491; 26.

Range, C. 187; 16.

Sannia, G. 487.

Sano, S. 69.

Saurel, P. 159.

Sbrana, F. 236, 237.

Schaefer, C. 70; 25.

Schlesinger, L. 322.

Schmidt, E. 358, 428; 7, 13, 11+, 15, 18.
Schur, I. 406, 407.

Schiirer, F. 291; 18.

Severini, C. 238, 239, 488; 8, 1J+.
Silberstein, L. 68.

Silla, L. 374, 467.

Sinigallia, L. 95, 323, 390.

Sonine, N. 240.

Soula, J. 104, 391.

Stekloff, W. 375, 429.

Stieltjes, T. J. 19.

Sturm, C. 10, 12, 13, 11+.

Tedone, O. 241, 242, 243, 244.
Titchmarsh, E. C. 440.

Tocchi, L. 169, 170, 489; 12.

Toeplitz, O. 13.

Trefftz, E. 71; 25.

Tricomi, F. 186, 189, 190, 245.

Usai, G. 472.

Vergerio, A. 160, 246, 247, 248, 249,
324, 359, 360; 11+, 15.

Villat, H. 250, 298, 453, 468; 21.

Vi tali, G. 376.

Vivanti, G. 18, 161.

Volterra, V. 19, 72, 125, 191, 192, 251,
252, 292, 325, 326, 327, 328, 329,
330, 331, 332, 392, 393, 394, 490,
495; 3, J+, 5, 6, 10, 11, 12, 13, 11+,
17, 19, 20, 21, 22, 23, 2J+, 26.

Walsh, J. L. 377; 13.

Watnabe, M. 96.

Watson, G. N. 20.

Wavre, R. 299.

Weatherburn, C. E. 84, 97, 98, 275.
Wells, Mary E. 77.

Westfall, W. 276.

Wevl, H. 73, 408, 430, 454, 455; 11+, 20,
25.

Whittaker, E. T. 20, 99, 362; 21.
Wiener, N. 80, 188; 25.

Wilson, B. M. 456.

Wirtinger, W. 283; 20.

Young, Grace, 307; 19.

Young, W. H. 197, 306, 307; 19.

Zarlatti, S. 457, 458.

Zeilon, N. 333.

Zenodorus, 17.

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VOL. XIII

September, 1926

INDIANA UNIVERSITY
STUDIES

Study No. 71

EARLY REFERENCES TO STORM AND STRESS IN
GERMAN LITERATURE. By Edwin H. Zeydel, Ph.D.,
Associate Professor of German, University of Cincinnati.

Study No. 72

THE TRANSFORMATION OF BOTTOM. By JOHN ROBERT
Moore, Ph.D., Associate Professor of English, Indiana
University.

For Sale by the University Bookstore, Bloomington, Ind. Price, 50 cents.

The Indiana University Studies are intended to furnish a
means for publishing some of the contributions to knowledge made
by instructors and advanced students of the University. The
Studies are continuously numbered; each number is paged inde-
pendently.

Entered as second-class matter March 27, 1916, at the post-office at Bloomington,
Ind., under the act of August 24, 1912. The Indiana University Studies are published
four times a year, March, June, September, and December, by Indiana University, from
the University Office, Bloomington, Ind.

■ " • : ' - ; , - ■

■

Study No 71

EARLY REFERENCES TO STORM AND STRESS IN
GERMAN LITERATURE. By Edwin H. Zeydel, Ph.D.,
Associate Professor of German, University of Cincinnati.

Prefatory Note

The following paper grew indirectly out of the writer’s
interest and studies in the works of Ludwig Tieck, the
Romanticist. Being familiar with Tieck’s essay on Lenz and
with the generally prevalent belief that the term “Sturm und
Drang,” as a designation for the literary movement, owes its
inception to this essay, the writer was impelled to investigate
the basis upon which our accepted notions of “Sturm und
Drang” rest. It is hoped that the early references to the
period which have been gathered from various sources in the
course of this investigation will throw some light upon the
history of the period and particularly upon the genesis of the
name by which it is most widely known.

Edwin H. Zeydel, Ph.D.

Associate Professor of German.

University of Cincinnati.

2—36793

(3)

Early References to Storm and Stress in
German Literature

By Edwin H. Zeydel, Ph.D., Associate Professor of German,
University of Cincinnati

I

Present-day writers on Storm and Stress, the revolution-
ary movement that dominated German literature during the
decade from 1770 to 1780, generally take the current designa-
tion of the period, “Sturm und Drang/' for granted. If they
go into an explanation of its provenience at all, they usually
content themselves with the remark that the term, originally
applied to a play of Maximilian Klinger, was later extended
to refer to the entire movement, which was so typically rep-
resented by Klinger's drama. The following examination of
some of the more recent works touching upon Storm and
Stress will serve to disclose this attitude.

Hermann Hettner in his Geschichte der deutschen Liter atur
im 18. Jahrhundert, 3. Buch. 1. Abteilung, Die Sturm- und
Drangperiode,1 speaks of the period merely as

. . . jene leidenschaftliche Erregung der Geister, welche wir als

Sturm- und Drangperiode zu bezeichnen gewohnt sind (pp. 1-2) .

Later, in discussing Klinger, he only says in passing :

Es ist sehr bedeutsam, dass gerade der Titel eines Klinger’schen
Dramas, Sturm und Drang, der Epoche den Namen gegeben hat (p. 260).

More information he does not offer.

In his excellent Introduction to Klinger in volume 79 of
Kurschner's Deutsche N ational-Literatur , August Sauer goes
somewhat farther. He says:

Es ist kein Zufall, dass das tollste Stuck Klingers das beriihmteste
wurde und der ganzen Periode den Namen gab. Urspriinglich der
“Wirrwarr” genannt, setzte Kaufmann die beiden Schlagworter “Sturm
und Drang” vor, die Lavater zuerst in dieser formelhaften Verbindung
gebrauchte (p. x) .

1 8. Auflage. Braunschweig, 1899.

(5)

6

Indiana University Studies

A. Wohlthat in his Zur Charakteristik und Geschichte dev
Geniepeno.de,2 3 goes back in his title and discussion to the
other designation of the movement, altho of course the name
‘'Sturm und Drang” is also quite familiar to him. Richard
Weissenfels in Goethe im Sturm und Drang* unlike some other
writers, has a very high opinion of the movement, which he
designates usually by the name appearing in the title of his
book. He considers the period not only from a literary point
of view, but also from the standpoint of Kultur geschichte, as
a complement to the Enlightenment.4 5 Furthermore he dis-
tinguishes, perhaps more clearly than any of his predecessors,
between the two phases of his subject, namely the aspect of
Kraftgenie and that of OriginalgenieJ' But nowhere does
Weissenfels throw any light at all upon the origin of the term
“Sturm und Drang.”

Max Koch in his Geschichte der Deutschen Literatur 6 gives
us the following information :

“Sturm unci Drang” lautet die Uberschrift eines 1776 veroffent-
lichten Schauspiels von Klinger. Erst im 19. Jahrhundert ist es all-
gemein iiblich geworden, den Namen des Stiickes zur Bezeichnung der
zwei Jahrzehnte vom Erscheinen der Herderschen “Fragmente” 1767
bis zum Abschluss von Schillers “Don Karlos” 1787 zu verwenden.
Wahrend der neuerungsfreudigen Literaturbewegung selbst sprach man
von einer “Genieperiode.” Die Bevorzugung des jetzt gebrauchlichen
Namens birgt zugleich ein Urteil in sich. Wir pflegen mit dem Namen
“Genie” schlechtweg nur jene Geisteskraft zu ehren, die siegreich sich
durch jegliche Wirr ungen durcharbeitet. Und aus der zahlreichen
Schar aller der mehr oder minder grossen dichterischen und schrift-
stellerischen Begabungen sind doch bloss Herder, Goethe und Schiller
als die vom Genius wirklich geweihten geistigen Fiihrer der Nation
h e r vor gegangen .

The English scholar Robertson in his History of German
Literature 7 uses, both “Geniezeit” and “Sturm und Drang”
and says:

The “Geniezeit” — the phrase “Sturm und Drang” was not em-
ployed until a later date — was in truth a period of genius (p. 307).

- Kiel, 1893.

3 1. Band, Halle, 1894.

4P. 12 ff.

5P. 58.

Vogt und Koch, Geschichte der Deutschen Literatur, 2. Band 4. Auflage, Leipzig
and Wien, 1918, p. 226.

T New York, Edinburgh, and London. 1902.

Zeydel: Storm and Stress

7

Later he adds that

“Der Wirrwarr oder Sturm und Drang” is the play which gave its
name to the movement (p. 326).

Richard M. Meyer, s while preferring the title “Sturm und
Drang” — he says the movement is so called

. . . mit sehr gliicklicher Benutzung eines Klingerschen Dramentitels0

uses also “Genieperiode” (p. 269). Bartels,10 too, prefers
“Sturm und Drang.” But none of these writers add any fur-
ther information on the origin of that expression and its
application to the movement..

One other recent work deserves to be consulted in this con-
nection. It is A. W. Porterfield’s An Outline of German
Romanticism A In his chapter on “Storm and Stress” the
author, writing primarily for students, gives the following
unusually full information on the rise and development of
the name :

The movement took its name from Klinger's drama of like name
(1776), though this drama was first, and more happily, called “Der
Wirrwarr,” Klinger changing it to “Sturm und Drang” at the sug-
gestion of Christoph Kaufmann, who took the idea from Lavater. The
expression “Sturm und Drang” did not, however, become current until
1828, when Tieck made it so by discussion connected with his edition
of Lenz’s works (p. 10).

We have now considered a sufficient number of the more
recent works on the subject to warrant the conclusion that
the term “Sturm und Drang” as applied to the literary move-
ment has not only come to be accepted universally as a part
of the great stock of literary tradition, but that most writers
consider it so familiar as to require no detailed explanation.

If we examine the earlier histories of literature, we find
a situation somewhat different. Koberstein,12 for example, is
familiar with the name “Sturm und Drang,” to be sure. But
in his work it occurs as a rule only in the Table of Contents
and Notes, most of which are later additions. In the text it

8 Die Deutsche Literatur bis znim Beginn des 19. Jahrhunderts, 5. bis 9. Tausend,
Berlin, 1920.

9 P. 464. Cf. also Berendt and Wolff, F. M. Klingers dramatische Jugendxverke,
1. Band, Leipzig, 1912, p. xlvi, for a similar attitude.

10 Geschiehte der Dents chen Literatur, Grosse Ausgabe in 3 Banden, 1. Band,
Leipzig, 1924, p. 487 ff.

11 Boston, New York, Chicago, and London, 1914.

12 Gesahichte der deutsehen National’ iteratur, 5. umgearbeitete Auflage von Karl
Bartsch, 2. Teil, Leipzig, 1873. The first edition appeared in 1827.

8

Indiana University Studies

appears but sparsely: “Sturm und Drang,” p. 154; “Sturm-
und Drangzeit,” p. Ill; “der stiirmische Drang,” p. 26; and
“Sturm- und Drangmanner,” p. 168. On the other hand,
“Genie” (p. 25 ff.), “Originalgenie” (pp. 81, .85 ff., 155-175),
“Kraftmanner” (p. 84), “Geniedrang” (p. 133), “Original-
kopfe,” “Originalcharakter,” etc., are rather more common.
In Gervinus,13 too, “Sturm und Drang” occurs occasionally.
For example, he says:

■ Weit der fruchtbarste und nachwirkendste unter diesen Dichtern,
und der achte Vertreter dieser Zeit ist Friedrich Maximilian Klinger,
. . . von dem wir schon Hauptzuge zur Charakteristik der Periode

entlehnt haben, die von seinem Schauspiel “Sturm und Drang” sogar
den Namen fuhrt (p. 659).

He speaks also of Herder’s “Sturm- und Drangstil” (p. 576)
and of “Sturm- und Drangsinn” (p. 655) . Yet far more com-
mon are “Originalgenie” (p. 459 ff.), “Kraftgenie” (pp. 469,
643), “Krafttragodie” (p. 651), and “Genialitat (p. 654:
“Muller gehort wesentlich in die Reihe der Genialitaten dieser
Zeit.”) It is clear, then, that for both Koberstein and Ger-
vinus, “Sturm und Drang” is as yet by no means the standard
designation.

In Vilmar,14 on the other hand, the term “Sturm und
Drang” has already become quite current. To be sure, we
find also “Periode der Originalgenies” (p. 384) and “Genie-
periode” (p. 466), but “Sturm- und Drangperiode” (pp. 384
and 466) shows a strong tendency to become the norm. For
Scherer,15 finally, “Sturm und Drang” is the fixed expression
(p. 501 ff.) ; “Genieperiode” and “Originalgenies” he uses only
incidentally as subsidiary words.

In all these earlier writers, just as in their successors of
recent years, one looks in vain for an attempt at a full, satis-
factory explanation of the development of the term. Found
in spasmodic use as early as Koberstein (1827), it gained
preference very slowly and gradually over its rivals “Genie-

13 Geschichte der deutschen Diohtung, 4. Band, 5. Auflage herausgegeben von Karl
Bartsch, Leipzig, 1873. The first edition appeared in 1835-1842. Laube, too (vol. 3,
1840), uses “Sturm- und Drangperiode” but prefers “Genieperiode” with reference to
Goethe.

14 Geschichte der deutschen National-Literatur, 22. Auflage, Marburg und Leipzig,
1886. The first edition appeared in 1845.

15 Geschichte der deutschen Literatur, 3. Auflage, Berlin, 1885. The first edition
appeared in J883. The work of Franz Hirsch (1883) also uses the term regularly,
but did not have the influence that Scherer’s work had.

Zeydel: Storm and Stress

9

periode,” “Periode der Originalgenies,” etc., until with Vil-
mar and Scherer it attained a supremacy that in succeeding
years became ever more marked. Today, finally, it is rec-
ognized as a part of traditional literary nomenclature that
seems to call for no elucidation.

II

If we would find a full, in fact the fullest and best available
exposition of the development of the term “Sturm und
Drang,” the exposition on which apparently the accounts of
Porterfield and others quoted above, are directly or indirectly
based, and which forms the foundation for all our accepted
ideas on the semasiological development of the term, we must
turn obviously not to the representative writers on Storm and
Stress during the past one hundred years, but rather to the
monumental Grimm Worterbuch , 4. Band, 1. Abteilung, 2.
Halfte (1897) — the last volume that bears traces of the hand
of Rudolf Hildebrand. Here we read as follows in the article
“Genie” number 11, columns 3428 ff. :

Der jetzt gangbarste Ausdruck, Sturm- und Drangperiode, der doch
das Wesen der Sache nicht bezeichnet, nur eine Ausserung davon und
auch diese nur nach ihrer Form, ist, was doch bemerkt sei, dem 18.
Jahrhundert noch fremd und von spaterer literarischer Entstehung;
noch Goethe im 19. Buch von “Wahrheit und Dichtung,” das von der
Genieperiode handelt, macht keinen Gebrauch davon, wie ich ihn z. B.
auch in Franz Horns Buch vom Jahre 1812, “Die schone Literatur
Deutschlands wahrend des 18. Jahrhunderts,” ja noch in Wolfgang
Menzels Buch von 1828, “Die deutsche Literatur,” vergebens suchte;
aber bei Tieck im Jahre 1828 doch schon als vollig gangbar: “Wir
haben jene Zeit halb vergessen . . . den neueren Kritikern und

Erzahlern ist fast nur der stehende Beiname der Sturm- und Drang-
periode im Gedachtnis geblieben” (Schriften von Lenz, I, vii).16 Aber
das 18. Jahrhundert bot den Anlass zu dem Ausdruck.

Then Hildebrand proceeds to quote from Klopstock’s ode
“Der Hiigel und der Hain” (1767), in which the poet refers
as follows to the songs of the ancient bards :17

Gestaltet mit kiihnem Zug;

tausendfaltig, und wahr, und heiss! ein Taumel! ein Sturm!

16 See Ludwig Tiecks Kritische Schriften, II, Leipzig, 1848, p. 179.

17 Kurschner, D.N.L., Klopstock, III, 139. In this passage, as usually, the Worter-
buoh refers to an old edition. Whenever possible the present writer has used a more
modern and more accessible edition.

10 Indiana University Studies

The trend of development which is to follow is clearly fore-
shadowed here.

Next he cites the title of Klinger’s play, changed from “Der
Wirrwarr” at the insistence of Christoph Kaufmann, the
charlatanic emissary of Lavater,18 who was responsible for
the estrangement that took place soon after between Klinger
and Goethe. Many years later, on May 26, 1814, Klinger
wrote to Goethe about the incident as follows:19

Das letzte Mai, da ich Sie sah, war ich in Weimar wahrend des
ersten Sommers Ihres dortigen Aufenthalts . . . Ich schrieb damals

im Drang nach Tatigkeit ein neues Schauspiel, dem der von . Lavater
(er ruhe sanft) zur Bekehrung der Welt abgesandte Gesandte oder
Apostel mit Gewalt den Titel “Sturm und Drang” aufdrang, an dem
spate r mancher Halbkopf sich ergotzte. Indessen versuchte dieser
neue Simson, da er weder den Bart mit dem Messer schor, noch Ge-
gorenes trank, auch an mir vergeblich sein Apostelamt. Er rachte
sich dafiir. Hatt’ ich mich bei meiner Abreise mehr als durch Blicke
des Herzens gegen Sie erklart, ich ware Ihnen gewiss werter als je
geworden.

Hildebrand follows up the title of Klinger’s play with the
phrase “Sturm und Gedrange” from a letter of Lavater to
Herder of 177320. This phrase, a favorite with Lavater,
formed the basis of Kaufmann’s, his disciple’s, suggestion to
Klinger, it is claimed, and has, therefore, considerable im-
portance. Since it is not used with reference to any literary
movement, however, but is merely a general expression of
personal application, it can be regarded only as having
furnished the germ for the group of ideas that later
crystallized around “Sturm und Drang” as the name for a
literary tendency.

A quotation from a letter of Klinger to Schleiermacher,
dated Leipzig, April 3, 1777, follows in Hildebrand’s ac-
count :21

Ich lebe so hin, bald in Drang und Sturm, bald im gelinden Sauseln.

18 For the facts see Rieger, Klinger in der Sturm- und Drangperiade, Darmstadt,
1880, p. 163. On Kaufmann, who owes his place in literature solely to his suggestion
to Klinger, see Diintzer, Christoph Kaufmann, der Kraftapostel der Geniezeit, in
Raumer’s Historisches Taschenbuch, 1859 (also the same author’s separate monograph,
Leipzig, 1882). Also Sauer in D.N.L., 79, introduction, p. 19 f¥. He is parodied as
“Gottesspiirhund” in Maler Muller’s Faust ( Literaturdenkmale, III, 45 ff.). Lavater,
however, always thought highly of him ; see Lavater’s letter to Herder of June 26, 1779
(Diintzer and Herder, Aus Herders Nachlass, II, Frankfurt, 1856).

19 Rieger, op. cit., p. 173. See also Hettner, op. cit., p. 263.

20 Aus Herders Nachlass, II, 76.

21 Rieger, op. cit., p. 407.

Zeydel: Storm and Stress

11

Evidently the phrase has made a deep impression on Klin-
ger; it has become part of his vocabulary. Indeed, Hilde-
brand might well have quoted the following somewhat sim-
ilar expression from Klinger’s correspondence, too. On
March 17, 1777, even earlier than the previously quoted letter,
he writes also to Schleiermacher :22
Meine Situation ist drang und leidensvoll.

Hildebrand now turns to Maler Muller, who in his Faust
(1778) has the devil Atoti say of the “Genies:”23

. . . immer schreiend von Kraft und Starke, Sturm und Drang.

Then Hildebrand quotes the expressions “Sturm und
Drang” and “Drang und Sturm” from the Geschichte eines
Genies (1780), both used in a purely personal connection,
and the following lines from Burger’s sonnet An das Herz
(1792) :24

Lange schon in manchem Sturm und Drange
Wandeln meine Fiisse durch die Welt.

In all these passages, except perhaps that from Maler Muller,
it will be noted, the term is used merely in a personal sense
with reference to the feelings of an individual. The same is
true of the following passage which Hildebrand quotes from
a letter by Goethe to Schiller of May 22, 1808. Goethe, re-
ferring to his impressions on looking over an old manuscript
of the Farbenlehre, says:25

die Millie, der Fleiss, das Schleppen und Schleifen und dann wieder der
Sturm und Drang, das alles macht in den Papieren und Akten eine
recht interessante Ansicht.

The next quotation, from Kastner (1798), on the other
hand, clearly reveals a turn of phrase quite similar to the
modern usage. Kastner is speaking of certain political writ-
ers of the day, who, he says, remind him of:26

. . . die Genie-, Kraft-, Drang-, und Sturmmanner, die Deutschland

vor einigen Jahren aus dem Reiche der Asthetik weggelacht hat.

Finally, with references to the word “Geniedrang” used by
Friedrich Schulz in 1782, to the Goethean expression

22 Ibid.

23 Literaturdenkmale, III, 19-20.

24 D.N.L., Burger, p. 361.

25 Weimar ed., IV. Abteilung, 16. Band, p. 232.

26 Kastner, Werke, III, Berlin, 1841, p. 176.

12

Indiana University Studies

“durchsturnren, durchdrangen”27 describing Klinger, and to
the words “Wurf- und Schwungmanner” and “Schwung- und
Kraftmanner,”28 Hildebrand closes his discussion.

The Worterbuch article on “Drang,” 2. Band, column
1334, supplements our material with the two following pas-
sages from Jean Paul, both again of merely personal ap-
plicability.

Siebenkav (1796) :2!> Er war bloss in Bayreuth dem freundschaft-
lichen Sturm und Drang seines Leibgebers mit seinem sonst wahren
Herzen gegen einen Freund erlegen.

Titan (1800) : 30 Enter dem Essen sprach der Lektor mit wahrem
Geschmack iiber die liebliche Gegend, aber mit wenig Sturm und Drang.

Thus far the Grimm W orterbuch. The great authority and
weight that it carries in this point, as in others, make the
following detailed discussion seem worth while.

In calling “Sturm- und Drangperiode” the most current
( gangbarste ) designation for the period, Hildebrand, writing
in the last decade of the nineteenth century, is correct, as we
have seen. His objection to it, however, as describing not
the heart of the movement but only a manifestation of it, is
not universally shared today. Both Koch and Meyer, for ex-
ample, seem to feel that it is a rather comprehensive and
happy descriptive title.

This brings us to the important statement, strongly empha-
sized by Hildebrand ( was dock bemerkt set) that “Sturm und
Drang” as applied to the movement is a name unknown
( fremd ) to the eighteenth century, that it is of late literary
origin, that hence it is found neither in Goethe, nor in Horn
(1812), nor in Menzel (1828), but that Tieck used it in 1828
in his Introduction to the edition of Lenz.

The thoughtful reader will notice, however, that Hilde-
brand is here not quite sure of his ground, and in a sense
guilty of a contradiction. For while he denies the existence
of the term (as applied to the movement) in the eighteenth
century, and finds no occurrences prior to Tieck he admits

2r “Dichtuncj und WaJirheit”, 8. Teil, 14. Buch. Weimar ed., .24. Band, p. 190.
This passage, as well as others from Diohtung und WaJirheit, will be further discussed
below.

28 For “Wurf” see below on Nicolai. For “Schwung” see also Maler Muller, F'aust -
( Literaturdenkmale, III, p. 20), where Atoti, speaking of the Storm and Stress poets,
says: “zu beweisen, dass auch Schwung in ih'ren Armen sitzt.”

23 D.N.L., Jean Paul, III, pp. 182-183.

30 Op. cit., IV, p. 20.

Zeydel : Storm and Stress

13

that for Tieck the term is altogether current ( vollig gangbar) .
In fact, Tieck calls it “der stehende Beiname.” Then too
Maler Muller’s expression of 1778 and Kastner’s “Drang-
und Sturmmanner” of 1793 are evidence of at least an early
potential development. Moreover, Koberstein’s familiarity
with the phrase in 1827 has been noted. These considerations
have prompted the writer to make a careful re-examination
of the sources with a view to finding new evidence and draw-
ing more convincing conclusions.

The following results have been obtained :

1. Klinger in his early dramas, as well as in his letters
quoted above, shows a preference for the words “Sturm” and
“Drang.” The opening speech of Wild in Sturm und Drang
is characteristic:1'

Heyda! nun einmal in Tumult und Lermen, dass die Sinnen herum-
faliren wie Dach-Fahnen beym Sturm. Das wilde Gerausch hat mir
schon so viel Wohlseyn entgegen gebriillt, dass mir’s wiirklich ein wenig
anfangt besser zu werden. So viel Hundert Meilen gereiset um dich in
vergessenden Lermen zu bringen — Tolies Herz! du sollst mirs danken !
Ha! tobe und spanne dich dann aus, labe dich im Wirrwarr.

In another place a character of Klinger remarks similarly :-
Ich fahr’ herum wie ein Wetterhahn auf dem Thurm beym Sturm.

Wild also says in Sturm und Drang (Act 2, Sc. 1, p. 284) :

So Welt auf, Welt ab, in zauberhafter, drdngender [our italics] Phan-
tasie.

The captain says (Act 3, Sc. 4, p. 310) :

Glaub mir, wann du niederfallst, pfeif ich dir ein Sterbelied, das
meine Matrosen pfeifen, wenn der Sturm am tollsten wiitet.

In Act 4, Sc. 4 (p. 325) and Act 4, Sc. 5 (p. 329) there is
also talk of “Sturm,” and in Act 4, Sc. 6 (p. 332) Blasius
says :

Lass denn den Sturm hinfahren, die Winde heulen liber mir.

And in the last scene of the play Berkley remarks (p. 353) :

Nur diese Gnade, lieber Himmel! dass ich dieses Kind vergesse! aus
diesem verworrenen Drang komme!

• 31 Berendt and Wolff, op. cit., vol. II, p. 265.

32 Quoted by Erich Schmidt, Lenz und Klinger , pp. 98-99.

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Finally in Die Z willing e (written before Sturm und Drang)
old Guelfo says:33

Grimaldi ist ein dusterer Mensch, der Nachts im Feld lauft, bey Sturm
und Wind.

On the strength of this preference we may well doubt whether
Klinger was correct in his letter to Goethe of 1814, quoted
above, when he says that Kaufmann forced the title upon
him (mit Gewalt . . . aufdrang). Klinger’s mind was

well prepared to accept it. His tone in the Goethe letter is
apologetic.

2. When Sturm und Drang was presented without much

success at Frankfurt late in the spring of 1777, Klinger’s
friend, H. L. Wagner, wrote rather angrily in the Brief e die
Seylersche Schauspielergesellschaft . . . betreffend :34

Wer fiihlt oder auch nur ahnt, was Sturm und Drang seyn mag,
fur den ist das Drama geschrieben; wessen Nerven aber zu abgespannt,
zu erschlafft sind, vielleicht von jeher keinen rechten Ton gehabt haben,
wer die drey Worte anstaunt, als waren sie chinesisch oder malarbarisch,
der hat hier nichts zu erwarten.

3. In a long review in the Allgemeine Deutsche Bibliothek
of 1777 entitled “Von der Lehre der Gebets- und Glaubens-
kraft, wie auch von Schwarmerei und Enthusiasmus,”35 writ-
ten probably by Nicolai and Petersen, we read with regard
to certain polemical writings of Lavater and his friend Pfen-
ninger :

Diese schleichenden Wendungen gleichen den listigen Abspriingen
eines gejagten Wildes, das seine Schwache fiihlt und seine Jager von
der Spur bringen will. Andere Schriftsteller dieser Partei hingegen,
[sc. Herder, Goethe and his circle] wilden Hauern gleich, die sich dem
Spiesse des Jager s entgegenstellen und ihn selbst zu Boden zu stiirzen
suchen, voll Drang und Sturm, eine neue Revolution zu erregen, ver-
warfen ohne Bedenken alle gelassene Vernunft und redeten geradezu der
Schwarmerei das Wort.

Other pertinent passages from Nicolai, especially from the
Introduction to his Kleyner, feyner Almanack (1777), will be
quoted later.

4. In his dedication of Fausts Leben to von Gemmingen,
Maler Muller says:36

Fiihlten wir doch oft siissen Drang, Theuerster, zum schaffen.

33 Berendt and Wolff, op. cit., I, p. 272.

31 Frankfurt a. M., 1777, Eichenberg’sche Erben, p. 131.

35 Vol. 30, No. 2, pp. 311-400. Quotation on p. 359 ff.

30 Literaturdenkmale, III, 5.

Zeydel: Storm and Stress

15

And again (p. 6) :

Giengs dann immer voran im Sturm, an Wasser, und Wald, Steg und
Hecken jetzt voriiber, dem Flug erhitzter Jugend-Phantasie nach.

5. Lichtenberg, like Nicolai an avowed enemy of Storm
and Stress, has the following passages. The first is from the
essay iiber Physiognomik (1778) :37

Gewiss hat die Zollfreiheit unserer Gedanken und der geheimsten
Regungen unsers Herzens bei uns nie auf schwachern Fiissen gestanden
als jetzt, wenn man aus der Emsigkeit, der Menge und dem Muth der
Helden und Heldinnen, die sich wider sie auflehnen, auf ihren baldigen
Umsturz schliessen darf. Man dringt von alien Seiten auf die
zukommlichsten Werke ihrer Befestigung, und wo man sonst geheimen
Vorrath vermutet, mit einer Hitze ein, die mehr einem gothisch-
vandalischen Sturm als einer uberdachten Belagerung ahnlich sieht, und
viele behaupten, eine formliche Ubergabe konne schlechterdings nicht
mehr weit sein. Es gibt aber auch eine Menge minder sanguinischer
Menschen, die dafiir halten, die Sache liege iiber ihrem geheimsten
Schatz noch jetzt so unzukommlich sicher, als vor Jahrtausenden, und
lachle iiber die anwachsenden babylonischen Werke ihrer stolzen
Sturmer, iiberzeugt, dass sich, lange vor ihrer Vollendung, die Sprachen
ihrer Arbeiter verwirren, und Meister und Gesellen aus einander gehen
werden. Die Sache, wovon hier die Rede ist, ist die . Physiognomik.

The second passage is from the essay Von ein paar alten
Dramen (1779). Discussing Storm and Stress in its relation
to the older periods, Lichtenberg speaks of two comedies by
the seventeenth-century writer Rudolph von Bellinkhaus and

says:38

[Sie] zeigen mehr als ailes, was ich gelesen habe, was in diesem
Falle Genie ohne Umgang mit der Welt und ohne Cultur, bloss durch
Drang allein vermag.

The third passage is from the Aphorisms. Ridiculing Lava-
ter’s experiments in physiognomy, Lichtenberg remarks
(F 734) :39

Der Unterschied ist bios, Schwedenborg sah Doktor Luthern im
Vorzimmer und Lavater Moglichkeit mit Existentz-Drang auf einer
Nase.

Many other passages from Lichtenberg will follow below.

6. In a notice of a new Werther imitation, von Knigge,

37 G. C. Lichtenbergs Vermischte Schriften, 8 Biinde, Gottingen, 1844-1847, vol. 4,
p. 18. Quoted also in Sauer, D.N.L. 79, p. 56.

38 Schriften, vol. 4, p. 127.

39 Literaturdenkmale, 8. Folge, vol. 16, p. 255.

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writing in the Allgemeine Deutsche Bibliothek (1784) uses
the epithet “Sturm- und Drang-Messware.”40

7. In Iffland’s little book Blick in die Schweiz (1793),
which records the author’s impressions gained on a short
trip to Switzerland the year before, we read a description of
the principality of Donaueschingen. The theatre, of course,
interests Iffland particularly, and he writes:41

Das Schauspielhaus ist allerliebst, weder zu gross noch zu klein.
Ich freue mich, dass die Furstin die Sturm- und Drangstiicke nicht
geben lasst, ohnerachtet der Raum des Theaters es nicht verbietet.

Another passage from a different work of Iffland will be
quoted later.

8. In his lectures on “Geschichte der romantischen Lite-
ratur” delivered at Berlin during the winter of 1803-1804,
August Wilhelm Schlegel says:42

Der fast vergessene Faust von Mahler Muller ist ebenfalls nur
Fragment. Es sind, wie in allem was von diesem Manne herriihrt,
herrliche Anlagen darin, die nur durch die iiblen Manieren der damaligen
Sturm- und Drang-Periode entstellt werden.

9. In volume XI of his Geschichte der Poesie und Bered-
samkeit, published in 1819 under the subtitle Dritte Abteilung,
Geschichte der schonen Wissenschaften ,43 the Gottingen pro-
fessor Friedrich Bouterwek has the following passage on
Storm and Stress:

Unter den Seltsamkeiten, die aus den Werken einiger Dichter dieser
Periode in die Denkart des Zeitalters ubergingen, und aus dieser wieder
auf die Litteratur zuriickwirkten, miissen zwei Geisteskrankheiten
g'enannt werden, die vorher in dieser Himmelsgegend unbekannt waren,
und in wenigen Jahren epidemisch wurden: die Genieaffectation und die
Empfindeiei. Das Wort Genie, das schon langer in der deutschen
Sprache sich festgesetzt hatte, wurde jetzt die Losung aller Derer, die
etwas Grosses zu leisten glaubten, wenn sie dem Neuen und Unerhorten
nachjagten. Schwachkopfe, die kaum Talent genug zu einer geschickten
Nachahmung hatten, hielten sich fiir Genies, weil sie voll stolzen Ver-
trauens auf ein wenig Phantasie, das ihnen die Natur verliehen hatte,

40 Vol. 60, No. 2, p. 431.

41 Blick in die Schweiz. Von August Wilhelm Iffland. Leipzig-, bey Georg Joachim
Goschen, 1793, p. 160.

42 Literaturdenkmale, vol. 19, top. 154-155.

43 Gottingen, bei Johann Friedrich Rower, 1819. The passage quoted is from
Fiinftes Buck der Geschichte der deutschen Poesie und Beredsamkeit, in volume XI
of the general series, pp. 364-365. Acknowledgment is made to Professor B. J. Vos
for calling attention to this passage and for letting the writer consult his copy of the

volume.

Zeydel : Storm and Stress

17

dem gesunden Verstande Hohn sprachen. Diese Genieaffen wollten von
keiner Regel etwas wissen. Gelehrsamkeit war in ihren Augen nicht
viel mehr als eine unniitze Last des Geistes. Die Natur sollte ihre
grosse Lehrerin seyn; und diese glaubten sie hinlanglich verstanden zu
baben, wenn sie mit sturmender Anmassung den Drang ihrer erkiin-
stelten Gefiihle aussprachen. Sturm- und Drang- Genies wurden sie
desswegen betitelt. Mit dem leidenschaftlichen Ungestiime und der
raffinirten Wildheit, an denen man diese Art von Genies erkannte,
vereinigte die Mode aber auch eine weinerliche Empfindsamkeit. Nicht
nur die Litteratur wurde von dieser Thorheit angesteckt; auch im
gemeinen Leben machten Gecken, die fur Genies gelten wollten, eccen-
trische Spriiiige, die man Geniestreiche nannte. Einige, die in Gothe’s
Werther sich berauscht hatten, sollen sich zuletzt auch erschossen
haben, um zu endigen wie Werther. Andre, die nicht so geneigt waren,
Hand an sich selbst zu legen, hielten sich schadlos an Seufzern und
Thranen, im Geschmacke des Romans Siegwart von dem sanften Dichter
Martin Miller; sie weinten, wenn sie eine Blume abpfluckten, und
klagten ihre Leiden dem Monde. Unter diesen Uberspannungen kam
indessen auch manche merkwurdige, vorher nicht beachtete Seite des
menschlichen Herzens zum Vorschein, und wurde ein neuer Stoff fiir die
Poesie. Erst durch die kantische Philosophie wurde die Art von Genie-
affectation und Empfindelei, die um das Jahr 1770 anfing, ganz aus der
Mode gebracht.

The passage is of particular interest because of the author’s
apparent attempt to explain the term “Sturm und Drang”
not from Klinger’s play, but on the basis of characteristics
of the movement itself. The use of the term by Bouterwek
is important because his work was widely read and exercised
considerable influence.

These passages, it is hoped, will serve to throw some light
upon the early use of the term. Perhaps they will also demon-
strate that Klinger’s mind was well prepared to accept the
title Sturm und Drang when Kaufmann suggested it to him
in 1776; that as early as 1777 the term was felt not only by
such friends of the movement as Wagner (and undoubtedly
others too — by Maler Muller in 1778), but also by such
enemies as Nicolai, as being a slogan; that contrary to Hilde-
brand’s belief and contrary to the notion generally prevalent
today, the expression was used as early as 1784, was em-
ployed in 1793 without comment and as a generally intel-
ligible phrase by one of the outstanding theatrical men of
the day, was taken for granted in 1803 by a prominent stu-
dent of literature in lecturing to the general public at Berlin,
and appears in an important literary work in 1819.

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In view of these data, we are inclined to believe that the
phrase was perfectly well known from the very outset. The
fact that it was not more widely used in literature during the
early period we would explain by the following assumption.
The prevailing attitude toward Storm and Stress from 1780
until well into the nineteenth century was a satirical one, as
we shall see. Now since the designation “Sturm und Drang”
conveys no necessarily satirical or derogatory impression, it
was often avoided in favor of such derisive terms as “Periode
der Originalgenies” or “Kraftgenies,” or the like. Used spas-
modically by Knigge, Kastner, Iffland, Schlegel, Bouterwek,
Koberstein, Tieck, Gervinus, and others, and orally perhaps
much more often (cf. Tieck’s “der stehende Beiname”), it
gradually made headway and, with a decreasingly deprecia-
tory and more detached attitude toward the movement, finally
became standard.

One more point in Hildebrand’s Worterbuch article de-
serves to be discussed. It is his reference to the fact that in
Goethe, just as in Horn and Menzel, the name “Sturm und
Drang” does not yet appear.

Goethe very early in life shows the influence of the so-
called Geniekultus. Weissenfels44 sees in Goethe, even during
the Leipzig period, signs of both phases of Storm and Stress,
namely “Kraftgenie” and “Originalgenie.” Indeed, the fol-
lowing passage to his sister Cornelia in a letter from Leipzig
of May 11, 1767, reveals this clearly:45

Man lasse doch mich gehen; habe ich Genie, so werde ich Poete
werden, und wenn mich kein Mensch verbessert; habe ich keins, so
helfen alle Critiken nichts.

With Gotz von Berlichingen of course he became the pro-
tagonist of the movement and with Werther he fortified his
leadership. But he had outlived the period soon after his
settlement in Weimar, as more than one of his satirical skits
at the expense of his erstwhile companions shows. The fol-
lowing passages from Dichtung und Wahrheit, finally, tell us
how far the aging Goethe had left Storm and Stress behind.

3. Teil, 11. Buch:46

Alles dieses und manches andere, recht und toricht, wahr und
halbwahr, das auf uns einwirkte, trug noch mehr bei, die Be-

44 Op. cit., p. 58.

45 Weimar ed., IV. Abteilung, 1. Band, p. 89.

40 Weimar ed. 28, pp. 67-68.

Zeydel : Storm and Stress

19

griffe zu verwirren; wir trieben uns auf mancherlei Abwegen
und Umwegen herum, und so ward von vielen Seiten auch jene deutsche
literarische Revolution vorbereitet, von der wir Zeugen waren, und wozu
wir, bewusst und unbewusst, willig oder unwillig, unaufhaltsam mit-
wirkten.

3. Teil, 12. Buch:47

. . . jene beriihmte, berufene und verrufene Literarepoche, in

welcher eine Masse j unger genialer Manner mit aller Mutigkeit und
aller Anmassung, wie sie nur einer solchen Jahreszeit eigen sein mag,
hervorbrachen, durch Anwendung ihrer Krafte manche Freude, manches
Gute, durch den Missbrauch derselben manchen Verdruss und manches
Ubel stifteten.

3. Teil, 14. Buch:48 Speaking of Klinger’s inability to come
immediately

. . . zu einer frohen und freudigen Ausbildung,

Goethe continues:

. . . vielmehr musste er sich durchstiirmen, durchdrangen.

4. Teil, 18. Buch:49

. . . die eigentliche geniale Epoche unserer Poesie.

4. Teil, 19. Buch:50

Damals manifestierte sichs [das Genie] nur, indem es die vorhandenen
Gesetze iiberschritt, die eingefiihrten Regeln umwarf und sich fur
grenzenlos erklarte. Daher war es leicht genialisch zu sein, und natiir-
licher, als dass der Missbrauch in Wort und Tat alle geregelten
Menschen aufrief, sich einem solchen Unwesen zu wider setzen.

4. Teil, 19. Buch:51

Und so fand ich mich fast mehr gehindert mich zu entwickeln und zu
aussern, durch falsche Mit- und Einwirkung der Sinnesverwandten, als
durch den Widerstand der Entgegengesinnten. Worte, Beiworte, Phrasen
zu Ungunsten der hochsten Geistesgaben verbreiteten sich unter der
geistlos nachsprechenden Menge dergestalt, dass man sie noch jetzt
im gemeinen Leben hie und da von Ungebildeten vernimmt, ja dass sie
sogar in die Worterbiicher eindrangen, und das Wort Genie eine solche
Missdeutung erlitt, aus der man die Notwendikgeit ableiten wollte, es
ganzlich aus der deutschen Sprache zu verbannen. Und so hatten sich

47 Ibid., p. 117.

48 Ibid., pp. 254-255. Just before this Goethe says of Klinger (p. 253): “Sein
Betragen war weder zuvorkommend noch abstossend, und, wenn es nicht innerlich
stiirmte, gemassigt.”

48 Op. cit., 29, p. 83.

50 Ibid., pp. 146-147.

51 Ibid., p. 147.

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die Deutschen, bei denen uberhaupt das Gemeine weit mehr iiberhand zu
nehmen Gelegenheit findet als bei anderen Nationen, um die scbbnste
Bliite der Sprache, um das nur scheinbar fremde, aber alien Volkern
gleich angehorige Wort vielleicht gebracht, wenn nicht der durch eine
tiefere Philosophie wieder neugegrundete Sinn fiirs Hochste und Beste,
sich wieder gliicklich hergestellt hatte.

While these passages confirm Hildebrand’s statements, it
should be remembered that the phrase “durchsttirmen, durch-
drangen” is undoubtedly a pun on “Sturm und Drang,” and
that the expression “Sturm und Drang” is used in a general
meaning of personal application in the letter to Schiller of
1803, quoted above. It is our impression that Goethe avoids
the term purposely. In his case this may well be due to an
aversion to it as applied to the movement. This would serve
also to explain in part the apologetic tone of Klinger when he
writes to Goethe in 1814 that Kaufmann “forced the title
‘Sturm und Drang’ upon him.” But Zeitler in his recent
Goethe-Handbuch 32 has no article on either “Sturm und
Drang” or “Genieperiode,” but merely a short pertinent entry
on “Genie.” E. von der Hellen, on the other hand, in the
Registerband of the Cotta Jubildumsausgabe, gives references
under the caption “Sturm und Drang.”

Ill

Klinger early became the butt of ridicule because of his
extravagant plays and extreme views. Soon after the appear-
ance of his drama Das leidende Weib in 1775, the parody
Die frohe Frau appeared.5" A reviewer of the squib heaps
insult upon injury by saying of Klinger:54

Er studirt zu Giessen, heisst Klinger. Er nimmt sich sehr viel heraus.
Er ist erst ein halbes Jahr von der Frankfurter Schule.

In a letter of Nicolai to Hopfner of April, 1776, we read:55

Klinger scheint mir ein sehr mittelmassiger Bursche zu sein, der nur
die Manier aufgeschnappt und selbst nicht viel in sich hat.

52 Stuttgart, 1917.

53 Reprinted in vol. I of Berendt and Wolff, op. cit., p. 332 ff.

54 Braun, Goethe im UrtcVe seiner Zeitgenossen (1773-1786), Berlin, 1883, p. 342.

55 M. Sommerfeld, Friedrich Nicolai und der Sturm und Drang, Halle, 1921, p. 279.
In the same way Nicolai ridicules Lenz in Die Freuden des jungen Werthers (1775) as
“das leichte, luftige Kerlchen.” See Sommerfeld, op. cit., p. 275.

Zeydel: Storm and Stress

21

On July 22, 1776, Nicolai gets from his friend Petersen a
lurid description of young Klinger, who is said to use opium
and overheat his room for the sake of firing his imagination.56

Klinger himself lost no time in turning nway from his
Storm and Stress mood. As early as 1780 the satirical Piim-
plamplasko der hohe Geist (heut Genie) appeared, usually
ascribed to Klinger alone,57 but described recently by F. Lo-
wenthal5S as being chiefly the work of Klinger and secondarily
that of Lavater and Sarasin. In this skit, Plimplamplasko,
the “Genie/’ temporarily dethrones Puro Senso (common
sense) and rules with “hoch und gross Geisterey,” establish-
ing “die neu Kraftgesaze, die gestimmt thaten seyn nach dem
Ideali.” But soon he is ousted and Puro Senso takes up the
reins again. In a review in the AUgemeine Deutsche BibUo-
thek 59 Musaeus describes the work as:

. . . die Spottschrift gegen die schwindelkopfigen Dunse jenes Jahr-

zehnts, die sogenannten Genies oder Kraftmanner.

Primarily it is directed against Kaufmann. In 1785, in the
preface to his Theater , published at Riga, Klinger has drifted
so far away from his old moorings that he is able to say of
the characters in his early plays:60

Freylich sind es individuelle Gemahlde einer jugendlichen Phantasie,
eines nach Thatigkeit und Bestimmung strebenden Geistes, die in das
Reich der Traume gehoren, mit dem sie so nah verwandt zu seyn
scheinen. Wer aber gar kein Licht in diesen Explosionen des jugend-
lichen Geists und Unmuths sieht, ist nie in dem Fall gewesen, etwas
davon in sich selbst zu fiihlen. Ich kann heute so gut dariiber lachen,
als einer; aber so viel ist wahr, dass jeder junge Mann die Welt, mehr
oder weniger, als Dichter und Traumer ansieht.

In a letter to his friend Kayser, dated April, 1785, he also
looks upon his early works as being youthful dreams.61 In
an aphorism, finally, he speaks of “Genieverschneider” and
calls the literary output of his younger days
. . . die so kiihn-genialischen Produkte der Dichtkunst.62

56 Sommerfeld, op. cit., p. 276.

57 See Goedeke Grundriss ; also L. Hirschberg, Der Taschcngoedeke, Berlin and Frank-
furt, 1924.

58 Beitrdge zur Entstehung und Wurdigung der Satire Plimplamplasko, Euphorion,
XXII, 2 (1919), pp. 287 ff. Erich Schmidt (Lenz und Klinger, Berlin, 1878, p. 102)
believed it to be the joint work of Klinger, Lavater, Sarasin, and Pfeffel.

59 Vol. 51, No. 1, p. 299.

60 Berendt and Wolff, op. cit., Ill, 349-350.

01 Ibid., II, 428.

152 E. Schmidt, op. cit., 105. Cf. also Klinger’s letter of 1814 to Goethe, quoted above.

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The foregoing quotations indicate how soon Storm and
Stress had spent itself, and they suggest that 1787, the date
often given as marking the end of the movement, is too late.
As a living force it hardly survived the year 1782. Many
other passages could be quoted to substantiate this fact. As
early as April 23, 1776, Nicolai predicts to Hopfner:63

Wie die Biirschchen schwatzen, bedeutet nicht viel. Das wilde
Wesen wird in vier oder fiinf Jahren verraucht sein und dann wird
man ein paar Tropfen Geist, und im Tiegel ein grosses caput mortuum
treffen. Ich habe schon mehr dergleichen Revolutionen erlebt. Man
muss die Knaben nur gehen lassen und nicht sehr auf sie Acht geben,
denn ihre ganze Absicht ist, Larm zu machen.

In the same derogatory vein Nicolai writes to Johannes von
Muller on July 12, 1776. Yet he confesses here that he ex-
pects a beneficent influence from the movement.64

Man wird das Abenteuerliche, das sie [sc. die Bewegung] einfiihren
will, bald uberdriissig werden, aber von dem Kraftigen wird etwas
zuriickbleiben.

Two years later, in 1778, the writer, speaking of the Storm
and Stress collection of verse Rheinischer Most, Erster Herhst
1775, remarks:65

Die Vergleichung der meisten Gedichte mit einem garenden Most
ist nicht libel. Aber wie muss es kommen, dass es bei dem ersten Herbst
geblieben ist? Ist der Wein am Rhein seit 1775 nicht geraten? Haben
die Kopfe, welche die Mittagssonne nicht heiss genug finden konnten, um
recht durchgliit zu werden, und die durch Lobeserhebungen ihrer
Klienten noch dazu so fleissig gediingt worden sind, dennoch seitdem
nichts als Heerlinge getragen?

Likewise in 1778 Eberhard, reviewing Burger’s Herzensaus-
guss vber Volkspoesie, writes:66

Anpreisung der Volkspoesie in liber spannter und beinahe liederlicher
Schreibart. So etwas hiess im Jahre 1776 Genie und im Jahre 1778 ist es
die Welt schon iiberdriissig.

IV

We have quoted the passage from the nineteenth book of
Dichtung und Wahrheit in which Goethe tells how Storm and

63 Sommerfeld, op. cit., p. 281.

M Ibid.

65 Allgemeine Deutsche Bibliothek, Anhan.o: z. 25./36. Bd., p. 754.

66 Ibid., p. 2299.

Zeydel: Storm and Stress

23

Stress actually endangered the future existence of the word
“Genie” in the German language. Max Koch says very aptly
on this point:67

Herder hat das Wort Genie geradezu mit “Original” und “Erfinder”
erlautert und von Kant wurde die Ersetzung des Fremdwortes durch
den deutschen Ausdruck “eigentiimlicher Geist” gefordert. Ja bereits
Lessing hat, freilich ohne das Sehlagwort Genie zu gebrauchen, doch
ganz im Sinne der Geniezeit gesprochen, wenn in seinen Versen iiber
die Regeln der Poesie und Tonkunst dem “Mittelgeist” g^geniibersteht
ein Geist, den die Natur zum Mustergeist beschloss,
ist, was er ist, durch sich; wird ohne Regeln gross.

Die Unabhangkeit von den Regeln war ja gerade das Entscheidende.
Die Notwendigkeit des Genies hatte man fast immer betont. Aber
wahrend Gellert noch ausdriicklich erklart hatte, das Genie bediirfe der
Regeln und Gelehrsamkeit, wird jetzt die Alleinherrschaft des Genies und
die Entbehrlichkeit, ja Schadlichkeit aller Regeln, auch der von Lessing
noch festgehaltenen, mit Heftigkeit noch verkiindet. Wir, “'die von
Jugend auf alles geschniirt und geziert an uns fuhlen und an anderen
sehen,” eifert der junge Goethe, “stossen uns an Shakespeares Planlosig-
keit und Charaktere. Und ich rufe Natur! Natur! nichts so Natur als
Shakespeares Menschen!” Campe wollte noch 1819 “Genie” einfach
mit “Natur” iibersetzen. Der altere Goethe hat beim Riickblick den
Missbrauch des Ausdrucks in Wort und Tat geriigt. Das Genie, meinte
er, habe sich in den siebziger Jahren fiir grenzenlos erklart, alle vor-
handenen Gesetze uberschritten und alle eingefiihrten Regeln umge-
worfen. “Wenn einer zu Fusse, ohne recht zu wissen, warum und wohin,
in die Welt lief, so hiess dies eine Geniereise, und wenn einer etwas
Verkehrtes ohne Zweck und Nutzen unternahm, ein Geniestreich.”

For the semasiological development of the word “Genie”
in this period the reader is referred to the lengthy, excellent
article by Hildebrand in the Grimm Worterbuch. In this
connection it is also interesting to study the origin and de-
velopment of the terms “Kraftgeist” (first recommended by
Campe as a pure German substitute for “Genie”), “Kr aft-
genie,” “kraftgenialisch,” “Kraftmann,” “Originalgenie,” and
“Originalitat.”68 This too can best be done with the aid of
the Worterbuch. The Storm and Stress theory of genius as
an active force in man with which he is supernaturally en-

67 Op. cit., II, 228.

68 The idea of originality and original genius in literature, altho previously present
in German literature, came to be a live issue with the translation of Young’s Conjectures
on Original Composition into German in 1760. For a discussion of the influence exercised
by this work on the Literaturbrieje (Nicolai, Mendelssohn, etc.), on Gerstenberg and
the Schlestvigsche Literaturbrieje , on Lessing and the Ii ambur gische Dramaturgic , on
Hamann and on Herder, see Kind, Edward Young in Germany, New York (Columbia
University Press) , 1906, p. 19 If.

24

Indiana University Studies

dowed was evolved by Hamann, Herder, and especially La-
vater in Part IV of his Physio gnomische Fragmented La-
vater’s idea of “Natur” and “Original’ ’(in terms of the Bible)
is disclosed by the following passages. The first appears in
a letter to Deinet of July 11, 1773 :70

Die Bibel ist nur Kommentar iiber die Natur, die Natur ist der Text,
oder vielmehr die Bibel nur Gemalde, die Natur das Original.

The second0 is from Bruderliche Schreihen aw verschiedene
Junglinge of 1782 :71

Die Natur ist immer Text, die Bibel immer Kommentar der Natur.

With regard to the emphasis of Storm and Stress upon nature,
Iff land once exclaims:7-

Natur! — ich wiinschte, dass der arge Missbrauch dieses Wortes aufge-
hoben seyn mochte.

The original, favorable connotation of “Genie,” “Original,”
and the like never became extinct, of course, even during the
height of Storm and Stress. Thus in the Fragmente Herder
uses “Originalkopfe” in the favorable sense.73 On August 21,
1770, the Konigsberg students from Courland and Esthonia
dedicated to Kant an ode written by “L . . . aus Liefland,”
that is the poet Lenz. It contains the lines:74

Ihr Sbhne Frankreichs! schmaht denn unser Norden,

Fragt, ob Genies je hier erzeuget worden :

Wenn Kant noch lebt, werdet ihr diese Fragen
Nicht wieder wagen.

This is an interesting use of the word “Genie” by one who
was soon to become an example of its other connotation. Simi-
larly C. H. Schmid, reviewing Gotz von Berlichingen in Wie-
land’s Teutscher Merkur (1773), says:75

Uns war dies das sicherste Kriterium des Genies, dass der unbe-
kannte Verfasser uns in einer so fortdauernden Tauschung, und in einem
so ununterbrochenen Genusse erhalten hatte.

69 Cf. Janentzky, J. C. Lavaters Sturm und Drang im Zusammenhang seines
religwsen Beicusstseins, Halle, 1916. Cf. also Nicolai’s conception of “Genie” as de-
scribed by Sommerfeld, op. cit., p. 31 ff. For Nicolai’s ideas on “Originalitat” see
Sommerfeld, p. 37 ft-

" T0 Quoted by Janentzky, op. cit., p. 75.

71 Quoted by Janentzky, p. 76.

72 A. W. Iffland , Fragments iiber Men s c h en dars tellung auf den deutschen Biihnen,
Erste Sammlung, Gotha, 1785, p. 81.

73 Suphan ed., 2, 116. Cf. also note 68 above on Xoung.

77 E. Schmidt, op. cit., pp. 4-5.

75 III, 267 ff.

Zeyd'el : Storm and Stress

25

Thus too in Schirachs Magazin der deutschen Kritik (1774)
Goethe is called “ein Originaldramatiker,”70 and in 1776 the
same periodical speaks of the “Originalgeist eines Goethe.”77
In the Deutsches Museum of 1776, finally, we read of

hohe Urgenien, die ganzen Nationen den Weg weisen sollen.7s

References to “Genie,” “Original,” and the like in the Storm
and Stress connotation multiply as the movement gains ground
and for a while tend to stifle the true meanings of these words
altogether. Even in 1755 Nicolai expresses himself on orig-
inality in his Brief e fiber den itzigen Zu stand der schonen
Wissenschaften in Deutschland:7"

Deutschland hat wirkliche Originalkopfe; aber es sind derselben
so wenige, dass man bei der allgemeinen Wut nachzuahmen unsern mit-
telmassigen Kopfen wirklich wiinschen mochte, dass sie besser nachah-
men lernten.

As early as the Fragmente Herder says, in opposition to the
unworthy imitators of Young:80

Endlich wird man den Toren am besten die Originalsucht ausreden
konnen, wenn man mit der grossen Stimme des Beispiels sie zuriick-
scheucht.

In a review “fiber den gegenwartigen Zustand des deutschen
Parnasses” in Wieland’s Teutscher Merkur (1773), C. H.
Schmid, referring again to Gotz von Berlich'ingen, writes:81

Doch ein originelles Phonomen ist fur unsre Biihne erschienen, dem
wir gern freudigen Beyfall zuruften, wenn es nicht zu sehr die Merk-
male der schon ehemals beseufzten Originalsucht an sich triige.

Nicolai’s parody of Werther , entitled Die F reuden des jungen
Werthers (1775), pictures Werther in trouble with his neigh-
bor. Werther remarks:82

Der Kerl ist traun ’n Genie, aber ’ch merks wohl, ein Genie ist
ein schlechter Nachbar: Wenns einem selbst auch wohl thut, als ein
Genie sprechen, so thut’s andren gar schier iibel, wenn man als ein
Genie handlet. — Wir wollen’s Genie auch nicht einschranken, denn der
Kerl ist reich und machtig, und Klagen thut nichts. Aber wenn wir
dem Genie aus dem Wege gehen konnten!

76 Halle, 3. Band, 1. Teil, p. 169.

77 4. Band, 2. Teil, p. 227. ...

7S 2. Band ( July-December, 1776), p. 1051.

79 Reprinted by G. Ellinger, Berliner Neudrucke III, 2, No, 7. The quotation is from
page 56 of this edition.

80 Suphan ed., 1, 256. Cf. also what Herder says in 1778 (ibid., 8,-223 ff.) .

51 May, pp. 150-152. Cf. also ibid., December, pp. .257-259,

82 Quoted by Braun, op. eft., p. 76.

26

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Referring to this passage, Lessing writes to Wieland on Feb-
ruary 8, 1775 :83

Der Kerl ist ein Genie, aber ein Genie ist ein schlechter Nachbar:
sagt Nicolai sehr gut in seinem, wo nicht bessern, doch kliigern Werther.

In the same letter Lessing expresses his contempt of Storm
and Stress by the following remarks :

Alles Genie haben jetzt gewisse Leute in Beschlag genommen, mit
welchen ich mich nicht gern auf einem Wege mochte finden lassen.S4

On another occasion he says :

Wer mich ein Genie nennt, dem geb ich ein paar Ohrfeigen, dass er
denken soil, es sind vier.85

Also referring to Nicolai’s Werther, the Berlinische Nach-
richten von Staats- und Gelehrten Sachen (1775) describe
how in the course of the story Werther becomes a rational
being and a sensible citizen and neighbor:86

Eben diese Umstande lehren ihn zuletzt einsehen, dass bloss Genie
den Menschen nicht gliicklich, aber wohl ihn und seinen Nachbar un-
gliicklich machen konne.

Schirachs Magazvn der deutschen Kritik (1775), attacking
Goethe’s N eueroffnetes moralisch-politisches Puppenspiel,
says:87

Sind wir armen Deutschen denn so gar unglucklich, so sehr vom
Genius verlassen, dass unsre Genies, bis auf Harlikinaden hinab,
nachahmen miissen, indem sie eben Originale seyn wollen?

Lichtenberg has already been mentioned as one of the
stanchest enemies of Storm and Stress. From the very outset
an opponent of the movement, his second trip to England
(1774-1775) particularly opened his eyes with regard to the
shortcomings of German literature. Thus in his Briefe aus
England he speaks in a general way of “junge geniestichtige
Originalkopfe.”88 His opposition to the young hotspurs did
not crystallize, however, until Nicolai suggested to him to
write a satire directed specifically against the “Original-
genies.” The result was the satirical skit Parakletor oder

S3 See E. Schmidt, Lessmcj, 3. AufL, II, Berlin, 1909, p. 635.

84 Muncker ed. 18, 129.

s5 E. Schmidt, op. cit., II, 57.

S6 Braun, op. cit., p. 78.

87 Halle, 4. Band, 1. Teil, p. 180.

88 Schriften, III, 208.

Zeydel: Storm and Stress

27

Trostgriinde fur die Unglucklichen , die keine Originalgenies
sind (1776). 89 The following passages are characteristic.
The first:90

Deutschland hat so lange nach Originalkopfen geseufzt, und jetzt,
da sie allein am Musenalmanach zu Dutzenden sitzen, klagt man iiberall
liber die Originalkopfe. Keine Messe ginge mehr wie unter Franz I.,
der Eine hinkte, der Andere affectirte ein steifes Knie, der Dritte
schliige ein Rad, der Vierte Purzelbaume, der Fiinfte ginge auf Stelzen,
der Sechste machte den Hasentanz, der Siebente hiipfte auf einem Bein,
der Achte rollte, der Neunte ritte sein spanisches Rohr, der Zehnte ginge
auf den Knien, der Elfte kroche, und der Zwblfte rutschte.91

The second:92

Wenn ich originell schreibe, z. E. in synkopischen Sentenzen, fluche und
schimpfe wie Shakespear, leyre wie Sterne, senge und brenne wie Swift
. . . Kaum war die Losung gegeben: wer original schreiben kann,

der werfe seine bisherige Feder weg, als die Federn flogen wie Blatter im
Herbste. Es war eine Lust anzusehen, 30 Yoricke ritten auf ihren
Stecken Pferden in Spiralen um ein Ziel herum, das sie den Tag zuvor
in einem Schritt erreicht hatten.

The aphorisms of Lichtenberg, too, are full of caustic ref-
erences to the so-called “Genies.”

D 364 :93 Der Deutsche ist nie mehr Nachahmer, als wenn er absolut
Original seyn will.

E 80 :94 Gewiss kan in Deutschland nichts der Aufmerksamkeit eines
satyrischen Kopfs wiirdiger seyn, als der jezt so allgemein gewordene
lacherliche Eyfer Original zu seyn. Es gehn liber diesem bemiihen die
besten Kopfe zu Grunde.

In E 43395 he berates “Genies” who overload their so-called
Volkslieder with recondite mythology. He is thinking no

89 Lichtenberg writes to Nicolai on September 2, 1776 (Leitzmann and Schiiddekopf,
Lichtenbergs Briefe, 3 Bande, Leipzig, 1901-1904, I, 262) : “Meine Schrift (Parakletor)

. . . ist eigen tlich ein Versuch einen Vorschlag auszufiihren, den Sie mir einmal vor

ein paar Jahren thaten, meine Satyre gegen die verderbliche Geniesucht unserer Zeit
zu wenden.”

90 Schriften, *il, 207.

91 Kleineibst, G. C. Lichtenberg in seiner Stellung zur dentschen Literatur, Strass-
burg, 1915, p. 8, is undoubtedly correct in seeing a similarity between this passage and
the drawing of Chodowiecki entitled “Kraft-Genies,” reproduced in Vogt_ and Koch,
op. cit., II, 229. “It is indeed likely that Lichtenberg’s text suggested the idea of the
drawing to Chodowiecki. But as early as 1773 C. H. Schmid had written in the
Teutscher Merkur , II, 5, p. 164 f. : “Nicht wenige versuchen es daher auf dem Kopf
zu gehen, um sich nicht der Fiisse mit dem gemeinen Haufen zu bedienen.”

92 Ibid. Both passages are also parts of Aphorism D60.4, Literaturdenkmale, 3.
Folge, vol. 11, pp. 195-196. They are likewise quoted by Sauer in D.N.L. 79, introduc-
tion, p. 54. Cf. also the notes of Leitzmann in Literaturdenkmale, loc. cit., p. 263 ff.

93 Literaturdenkmale, 3. Folge, vol. 11, p. 364.

94 Op. cit., vol. 16, p. 20.

95 Ibid., p. 113.

4 — 36703

28

Indiana University Studies

doubt of the Anacreontic writers and the Hainbund, whom
he includes among the “Genies.”

E 497 :96 So viel ist gewiss, keine Nation fiihrt das Wort Genie so
offt im Munde als die deutsche seit 6 bis 8 Jahren, und nie sind die
Genies seltijer gewesen.

Aphorisms F 6397 and F 111798 also contain digs at Storm
and Stress.

In the Bittschrift der Narren, another severe attack against
the movement, Lichtenberg, parodying at the same time the
style of Storm and Stress, remarks:99

0 wenn wir Worte hatten! ein Buch ein Wort, ein Wort ein Buch,
aber hoher Genius, und euer Deutsch, eure Grammatik! . . . Gabs’n,

wolt’s n’t fress’n. Siehst’s Genie? Wie’s ’n Wolk’n webt? Ob d’s Genie
siehst? Wenn d’s nit siehst, host d’n Nosen nit’s Genie zu riechen?

All these and many other passages from Lichtenberg’s
works100 stamp him as one of the most savage enemies of
Storm and Stress in all Germany.

Lenz, than whom there was no more ardent supporter of
the movement, gives a half-humorous description of a “Genie,”
as he is pictured by his enemies, in the poem L’Eloge de feu
Monsieur . . . nd (1775) :101

Und wollte gar ein Kerl behaupten, sie [the Medusa] sei schon,

So war er ein Genie, wie wir das Wort verstehn:

Ein Ungeheur mit funkelnd hohlem Munde,

Mit mehr als einem bosen Geist im Bunde,

Ein wilder Gems, der immer hopsa springt.

Claudius, too, wrote a skit on the “Genie” in his Nachricht
vom Genie (1776) :102

Ein Fuchs traf einen Esel an:

Herr ’Esel, sprach er, jedermann

Halt Sie fur ein Genie, fur einen grossen Mann.

Das ware! fing der Esel an;

Hab doch nichts Narrisches getan!

96 Ibid., p. 124.

07 Ibid., pp. 146-147.

98 Ibid., p. 322.

99 Schriften, II, pp. 225-226. Also quoted by Sauer, D.N.L. 79, pp. 54-55.

300 Cf, Schriften, III, 36, 208, 212 : IV, 15, 188, 193, 199, 241; V.: 100,. 107, 281;
VI, 327. . Cf. also IV, 261, where he prefers the writings of Gellert to “jetzige
Genie-Seherei und Genie-Flegelei.”

101 F. Blei, Gesammelte Schriften von Lenz, vol. I. Miinchen and Leipzig, 1909,

p. 91.

102 D.N.L., Gottinger Dichterbund, 3, p. 272,

Zeydel: Storm and Stress

29

The Gottinger Musenalmanaeh (1777) has the following
anonymous poem:103

Nimm sechsgesilbte Worter fein
Misch etlich dunkle Bilder drein,

Dazu noch etwas Adlerblut,

Gedorrte. Schadel sind auch gut;

Lass alles mahlich destillieren,

Danach mussts durcheinander riihren,

Schiitts in einen alten teutschen Pokal;

Kommt bugs dir eine Raserey:

Trink und vomirs nun ohne Scheu;

Wirst sehn ’s ist ’n Original.

Just as Lichtenberg had included the Gottingen poets among
the “Genies,” so Nicolai counted Voss among them in a note
appended to a review in the Allgemeine Deutsche Bibliothek
(1779) :104

Hr. Voss sollte sich in Acht nehmen, dass er nicht in Otterndorf
me.hr verwildere. Wer ein Genie der neuesten Art gewesen ist, das
Grobheit fiir Kraft halt, und wird darauf Rektor in einem kleinen
Stadtchen, lauft grosse Gefahr, seinen Eigendiinkel fiir Bewusstsein der
Superioritat zu halten.

Finally attention is called to the anonymous five-act satiri-
cal comedy Das Geniewesen.105

The element of “Kraft” has already appeared in various
quotations. It comes out more clearly in others. As early
as 1778 Nicolai uses the expression “Kraft- und Wunder-
partei” in a letter to Lavater106 — perhaps under the influence
of Lavater.107 The expression “Kraft- Genie- und Wunder-
partei” is also used, with reference to Kaufmann, in a letter
of Petersen to Nicolai of January 12, 1778.108 In an unpub-
lished letter of Nicolai to Hopfner, dated April 13, 1775, 109
we read:

Ich gestehe, ich bedaure die Leute herzlich, die so viel von Kraft und
Selbstandigkeit plaudern und bei dem geringsten Widerspruch aus der

i°3 p. 48. Quoted by Kleineibst, op. cit., p. 8.

104 Vol. 39, No. 1, p. 310.

105 Frankfurt and Leipzig, 1781. See Goedeke, IV, III, 132, who conjectures that
Hottinger is its author. See also Hedwig Waser, Eine Satire aus der Geniezeit, in
Vierteljahrschrift fiir Literaturgeschichte, 5, 249 ff. See also the term “Geniedrang”
quoted above from Hildebrand.

1S Quoted by Sommerfeld, op. cit., p. 226.

107 For Lavater’s ideas' on “Wunder” see Janentzky, op. cit., p. 266.

ins Sommerfeld, op. cit., p. 281.

109 Quoted by Sommerfeld, pp. 260-261.

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Indiana University Studies

Haut fahren wollen. Bei ihnen miissen bestandig ihre Principien mit
ihrem biirgerlichen Leben in Collision kommen und sie unmutig machen.

With Maler Muller, as with all the Storm and Stress writ-
ers, “Kraft” is a favorite word. We quote from his dedica-
tion of Fausts Leben to von Gemmingen, as a typical illus-
tration of the predilection for the word at the time:110

Neu gestarckt dann, Unsterblichen gieich, wir in Ihren Heldenwagen
sprangen, gastfrei und bieder Sie, ein anderer Odyseus, den Ziigel
ergriffen, die zwei braune stolz wiehernde Halbgottinnen voran zu jagen,
die ihrer Kraft wegen mir so lieb sind.

The Erfurtische Gelehrte Zeitung of July 24, 1781, dis-
cussing Schiller’s Rduber, says:* 111

Haben wir je einen teutschen Shakespear zu erwarten, so ist es
dieser. Aber eben diese grose Hofnung berechtiget uns auch zu groseren
Forderungen, als die Alltagskost fur unsere gewdnliche Kraftmanner,
und siise Geisterchen.

“Kraftgenie” is the title of one of Staudlin’s Vermischte
Poetische Stilcke reviewed in the Wirttembergisches Reper-
torium, perhaps by Schiller.112

In his prize essay Von den Ursachen der Allgemeinheit der
franzosischen Spmche (1784), Johann Christoph Schwab
speaks as follows:113

Wehe unserer Sprache, wenn daselbst einmahl eine Deutsche Aka-
demie errichtet werden, und in dieser die neuern Kraftgenies die Ober-
hand bekommen sollten! — Unsere Franzosen-Hasser, die meistens Sprach-
verderber sind, sehen niclit ein, wie sehr sie Frankreichs Herrschaft in
Deutschland begiinstigen: denn wenn sie fortfahren, unsere Sprache
zu zerriitten, so werden wir endlich alle Franzosisch reden und schreiben
miissen.

The complaint of Schwab, just noted, is voiced also, so far
as punctuation is concerned, by Iffland. Altho his point of
view is chiefly that of the actor, his remarks are of general
applicability. The passage is from the little volume entitled
Fragmente ilber Menschendarstellung auf den deutschen
Biihnen, Erste Sammlung, already quoted above:114

Die Deutlichkeit des Sinnes dem Leser zu ubergeben, ward die Inter-
punktion eingefuhrt. Man ist zu dem Ende iiber gewisse Zeichen all-
gemein einig geworden. In den letzten Zeiten aber, haben einige grosse

110 Literaturdenkmale, vol. 3, pp. 5-6.

111 Braun, Schiller im UrteUe : seiner Zeitgenossen, I, Leipzig, 1882, p. 1.

112 See Weltrich, Friedrich Schiller, I, Stuttgart, 1899, p. 562.

113 See Zeydel, Johann Ohristoph Schwab on the Relative Merits of the European
Languages, Philological Quarterly (University of Iowa), III, 4, p. 301.

114 P. 84.

Zeydel: Storm and Stress

31

Manner sich eine Interpunktion auch fur den Ausdruck des Gefuhls
oder der Eigenheit gewahlt, und da gebraucht, wo Geistesstarke, Eigen-
heit der Wendung, Neuheit des Dialogs und der Sprache, die gewohn-
liche Interpunktion der trockenen Moral und Amtsbescheide nicht ver-
tragen konnten. Seit dem sind, von Yoricks Reisen bis zu jeder
Kalendergeschichte, die Querbalken, Schlachtschwerter, halbe Reihen
Striche, ganze Reihen Piinktchen, ja sogar die Knippel — in alien
Messproduktionen erschienen.

With certain miscellaneous references to Storm and Stress
or to individual writers of the movement we shall bring our
examination to a close.

Bruckner, complaining to Voss about the studied obscurity
of the Storm and Stress writers, says:115

Ist’s nicht des Dichters Pflicht, sich alle mogliche Miihe zu geben,
fur die meisten Leser verstandlich und leicht zu sein? Lass uns im-
merhin kleiner sein, wenn wir nur niitzlicher sind; das ist eigentlich
allein wahre Grosse.

Hopfner writes to Nicolai on August 12, 1775, about “die
Leutchen aus der Goetheschen Schule” and “die Goetheaner,
die Halbgotter,” and on April 24, 1776, about

die Goetheaner, die geradezu alles fur Ochsen und Esel erklaren, was
nicht zu ihrer Schule gehort oder ihren Helden Goethe anbetet.110

In a review of certain works of Hamann, Nicolai writes in
the Allgemeine Deutsche Bibliothek (1775) :117

. . . seit eininger Zeit steht eine Gattung feuriger Junglinge auf,

die Suppen, so wie alles, was nicht stark ist, ausserst verachten.

In January, 1777, Kastner, ridiculing the Storm and Stress
dramas and their subject-matter, urges Nicolai to publish

. . . eine Sammlung von Haupt- und Staatsaktionen zum Gebrauch

unserer dramatischer Dichter!ls

In 1777 Nicolai published his Kleyner feyner Almanack —
erster Jahrgang ,119 The Introduction, written in a happy,
satirical vein and in a lumbering, archaic style, is full of digs
at Nicolai’s old enemies, the Storm and Stress writers. It
professes to be the work of a cobbler who has reached the con-

115 Abraham, Brief e an Voss, I, 183.

110 All three passages qiioted in Sommerfeld, op. cit., pp. 275-276.

117 Vol. 24, p. 287 f.

11S Sommerfeld, op. cit., p. 282.

119 See Sommerfeld, p. 282 f.

32 Indiana University Studies

elusion that cobbling and poetizing are on the same plane and
hence may be compared. He says:120

Denn ob schon in disen letzten betrubten Zeiten, die Welt sich wol
umbkehrt hett, dz di Poeten grosse Hansen worden, unndt eynen erbern
Schuster schier eben uber d’ Achsel ansehn miigen; wars doch wol bey
den liben Alten fast anders.

In the course of time, our cobbler tells us, poetry came into
the hands of the cobblers and linen-weavers, the former writ-
ing the songs, the latter singing them. Presently the linen-
weavers arrogated to themselves all the fame that rightly be-
longs to the poets. He continues:121

. . . (die Leineweber) taufenn, gantz heymlich, sint etwelcher

Zeyt, gewandsweyse allerley hipsche und artliche Enyfall in der Poeterei,
den ersten Wurff, als ob ettwan eyn Leinweber seyn Schiff wurfe,
taufenn eyn’n hohen Sinnesbegriff der schlumps den Poeten antritt,
eynen Sprung, gleich als ob dem Weber, fur zu grobem Wurf, eyn
Faden sprange. 1st aber eytel Mischmascherey mit solchen almodischen
Genammsel, denn’s solten, solch schnell unndt gewaltig Einfelle der
Poeten, nicht so fast, der erste Wurff, als der erste Schnitt benamset
werden. Haben denn wol unsere lieben Vorfaren an der Poeterei unndt
an der Schusterei, ob sie eyn’n Reyen zu dichten, oder eyne Sole zu
schneyden hatten, eyn Winkelmass angelegt? Mit nichten. Dichten
unndt Schustern geschah, uffrn ersten Schnytt, frey, auss innerm Drang
eyn’ Sole zu schneyden.

He goes on to say (p. 5) :

Mit der liben Poeterey, ists denn nun, Gott erbarms, gar zu Ende. Uber
dem Versemachen mocht keyner mer den ersten Schnitt, oder dz ich
nach leinweber Art unndt Kunst spreche, den ersten Wurff, fulen konnen.

Furthermore (p. 5) :

. . . kluge Handwerksbursche wissen fast wol, dz Poetry Hert-

zens-Ausguss ist, unndt wie ’n Piltz aus feuchtem Balcken, ungeseet
unndt unverlangt, aus innerm Drang hervorschwellen muss.

Then he turns directly upon the “Genies” (p. 6) :

Zwaren spuret man hin unndt her, newe Gesellen, nennen sich Genyes,
schwetzen d’ Lang unndt d’ Queer, von Volcksliedern, vom Wurfe unndt
Sprunge; ’s aber eytel Mummerey mit den Kerlen, ’s sind doch Verse-
macher. Wollen eben wz newes haben, wollen Oren kitzeln, wollen
feynen Damen newe Lydlein vormachen, stelen darob, aus Volcksliedern,
hie ’n Wort, da ’n Wort, flicken’s in jre Verse, machen ’n Schnitt
queereyn, als wer’s erster Schnitt mag doch solch Mummenschanze nicht

120 Friedrich Nicolais kleyner feyner Almanack 1777 (1. Jahrgang) herausgegeben

ven Georg Ellinger (Berliner Neudrucke, I, Berlin, 1888), p. 3.

161 Op. cit., p. 4.

Zeydel: Storm and Stress

33

erklecken, dz eyn erber Handwerkspursch solch almodische Reyen singen
solt, mochtens feyne Damen, kann unser eyns nicht wissen. ’Sind eben
unnder derley Genyes, gar grobe Knollen mit unnder, meynens feyn
naturlieh, wenns ungehobelt unndt plump ist.

Further caustic references to the “Schnitte,” “Wurffe,”122 and
“Sprunge” of the “Genye.” (pp. 7-8) conclude the Introduc-
tion.

Later in life, Nicolai, looking back upon his relations to the
writers of Storm and Stress, said not without force:123

Ich ward zur Gesellschaft der kalten Hunde gerechnet . . . weil

ich nicht glaubte, mich an einem Haufen Johanniswiirmchen warmen zu
konnen.

Justus Moser, as a defender of the German language and
literature, judges the movement much more mildly in his
essay iiber die Deutsche Sprache und Literatur (1781). He
says :124

Auch die Klinger, die Lenze und die Wagner zeigten in einzelnen
Theilen, eine Starke wie Herkules, ob sie sich gleich auch wie dieser
zuerst mit einer schmutzigen Arbeit beschaftigten, und vielleicht zu friih
fur deutsche Kunst und ihren Ruhm versturben.

Finally, we shall conclude our quotations with two rather
lengthy passages from the anonymous two-volume work of
Johann Kaspar Riesbeck entitled Brief e eines reisenden Fran-
zosen iiber Deutschland an seinen Bruder zu Paris . iiber-
setzt von K.R. The Brief e first appeared in 1783; a second
revised edition was published in 1784. We shall use the
“zweyte betrachtlich verbesserte Ausgabe” as our basis. The
passages are quoted here in extenso both because of the in-
accessibility of the work and the slight attention that has been
accorded it in our day.125

A passage in the first volume (pp. 70-78) reads:

Schon zu Strassburg erfahrt man, wenn man die deutsche Sprache
versteht, dass Deutschland seit einigen Jahren mit einer Art von Theater-
wuth befallen ist. Da werden die Buchladen von Zeit zu Zeit mit einem

122 Cf. the expression “Wurf- und Schwungmanner” quoted above from the Wdrtcr-
buch. Nicolai’s ridicule of “Drang” in these passages is also significant.

123 G. E. Lessings sdmmtliche Schriften, 27. Teil, Berlin, 1794, herausgegeben von
Friedrich Nicolai, p. 253, note.

124 Literaturdcnkmale, 3. Folge, No. 2, p. 19. The passage quoted furnishes
additional evidence also that when it was written (1781) the Storm and Stress move-
ment was considered dead.

125 The only pertinent quotation from it which we have been able to find- mn
excerpt on Goethe — is in the Transactions of the Manchester Goethe Society, 1894, p. 182.

34

Indiana University Studies

ungeheuern Schwall von neuen Schauspielen, Dramaturgien, Theater-
almanachen, Theaterkroniken und Journalen iiberschwemmt, und in den
Katalogen neuer Bucher nehmen die Theaterschriften allzeit richtig den
dritten Theil ein. Ich halte selbst das Dramatisiren fur die. hochste
Stufe der Dichtkunst, so wie das Geschichtemalen fiir den edelsten
Theil der Malerey. Es soil uns den edelsten Theil der Schopfung, den
Menschen in seinen mannichfaltigen Verhaltnissen am anschaulichsten
und mit der grossten Wahrheit darstellen. Aber die Art Menschen,
welche jezt in den meisten deutschen Schauspielen herrscht, findet man
unter dem Mond hochst selten, und wenn hie und da einer von dieser
Art von ohngefahr erscheint, so nimmt die Polizey des Orts, wenn eine
da ist, gewiss die Versorgung desselben iiber sich, und thut ihn ins
Toll- oder Zuchthaus.

Stelle dir vor, lieber Bruder, die jezigen Lieblingskaraktere des
dramaturgischen deutschen Publikums sind rasende Liebhaber, Vater-
morder, Strassenrauber, Minister, Matressen, und grosse Herren, die
immer alle Taschen der Ober- und Unterkleider voll Dolche und Gift-
pulver haben, melancholische und wiithende Narren von alien Arten,
Mordbrenner und Todtengraber. Du glaubst es vielleicht nicht, aber es
ist die Wahrheit, dass ich dir iiber 20 Stiicke nennen kann, worm ver-
riickte Personen Hauptrollen spielen, und der Dichter seine Starke in
der Schilderung der Narrheit gesucht hat. Und was sagst du, wenn
ich dich auf meine Ehre versichere, dass das deutsche Publikum, welches
ich bisher zu kennen die Ehre habe, gerade die Stellen am starksten
bewundert und beklatscht, wo am tollsten geraset wird? — Man hat
Stiicke, worm die Hauptperson alle 12 bis 15 mitspielende Personen der
Reihe nach umbringt, und sich dann zur Voliendung des loblichen Werkes
den Dolch selbst in die Brust stosst. — Es ist ausgemacht, dass die Stiicke
den meisten Beyfall haben, worm am haufigsten geraset und gemordet
wird, und verschiedene Schauspieler und Schauspielerinnen konnten mir
nicht genug beschreiben, was sie fiir Noth hatten, um auf verschiedene
neue Arten sterben zu lernen. Es kommen Stellen vor, wo Leute unter
abgebrochenen Reden und anhaltenden Konvulsionen eine halbe Stunde
lang in den lezten Ziigen liegen miissen, und das ist doch wahrlich kein
geringes Stiik Arbeit, einen solchen Tod gehorig zu souteniren. Du
solltest nur manchmal eine deutsche Schaubiihne sehn, wo vier bis fiinf
Personen auf einmal auf dem Boden liegen, und der eine mit den Fiissen,
der andre mit den Aermen, der mit dem Bauch, und jener mit dem Kopf
seinen Todeskampf ringt, und das Parterre unterdessen jede Zuckung
beklatscht.

Nach den Rasenden und Mordern behaupten die Besoffenen, die
Soldaten und Nachtwachter den zweyten Rang auf der deutschen Biihne.
Diese Personagen entsprechen dem Nationalkarakter zu sehr, als dass
sie einem deutschen Zuschauer auf der Biihne nicht willkommen seyn
sollten. Aber warum der phlegmatische Deutsche, der zu stiirmischen
Leidenschaften, zu rasenden Unternehmungen, zu starken tragischen
Ziigen so wenig Anlage hat, so verliebt in die Dolche, Giftmischereyen
und hitzige Fieber auf dem Theater ist, das konnte ich mir anfangs so
leicht nicht erklaren.

Auf der Seite des Publikums mag wohl der Mangel an mannich-

Zeydel : Storm and Stress

35

faltigern Kenntnissen des biirgerlichen Lebens und am geselligen
Umgang eine Ursache davon seyn. Die verschiedenen Volksklassen
kreuzen sich in den deutschen Stadten nicht auf so verschiedene Art,
wie in den Franzosischen. Alles, was Adel heisst, und wenn auch der
Adel nur auf dem Namen beruhen sollte, und alles, was sich zum Hof
rechnet, ist fur den deutschen Burger verschlossen. Seine Kenntnisse,
seine Empfindungen von gesellschaftlichen Situationen, sind also vie]
eingeschrankter, als jene unserer Burger. Er hat kein Gefiihl fiii
unzahliche Verhaltnisse des gemeinen Lebens, die der Bewohner einei
mittelmassigen franzosischen Stadt gehorig zu schatzen und zu empfinder,
weiss. Bey dieser Gefiihllosigkeit fur biirgerliche Tugenden und
Laster, bey dieser Stumpfheit fiir die Verkettungen und Intriguen des
gewohnlichen gesellschaftlichen Lebens, hat nun der deutsche Burger
natiirlich zu seiner Unterhaltung im Theater Karrikaturen und starke
Erschutterungen nothig, da sich der Franzose mit einem viel feinern
Spiel der Maschinen eines Theaterstiickes begniigt, und seine eigene Welt
gerne auf der Biihne vorgestellt sieht, weil er sie kennt. Die Theater-
stiicke, welche man aus Sachsen bekommt, sind nicht so abentheuerlich
und ungeheuer, als die, welche in dem westlichen und siidlichen Theil
von Deutschland gemacht werden, weil ohne Zweifel mehr Aufklarung,
Sittlichkeit und Geselligkeit unter den Biirgerstanden daselbst herrscht,
und man also auch die Schattirungen der Auftritte des gemeinen Lebens
besser fiihlt, als hier. tjberhaupt ist hier zu Lande der grosse Haufen
mehr Pobel als in Frankreich, und bekanntlich lauft der Pobel gerne
zum Richtplatz und zu Leichen.

Auf der Seite des Dichters hat diese tragische Wuth verschiedene
Ursachen. Die meisten der jeztlebenden deutschen Schauspielschreiber
haben das mit dem iibrigen Pobel gemein, dass sie die Fugen und das
Spiel des biirgerlichen Lebens gar nicht kennen. Viele derselben sind
Studenten, die noch auf der Schule sitzen, oder so eben davon zuriick-
gekommen sind, und das Schauspielmachen zu ihrem Metier erwahlt
haben. Da schmauchen sie ohne alle Weltkenntniss hinter ihrem Ofen,
phantasiren sich in den Tabakswolken eine Riesenwelt, worin sie als
Schopfer handeln konnen, wie es ihnen beliebt, und ihren Kreaturen
keine Schonung, keine Ausbildung, keine Polizey, und keine Gerechtig-
keit schuldig sind. Da ist es. nun kein Wunder, dass aus diesen Wolken
so viele Menschen ohne Kopfe, und so viele Unmenschen mit Kopfen
herausspringen. Sie suchen die tragische Stimmung des Publikums zu
benutzen, um mit der grossten Leichtigkeit ihr Brod zu gewinnen; denn,
ohne auch das willkiihrliche Abentheuerliche in Anschlag zu bringen,
so ist es doch allzeit leichter eine Tragodie, als eine Komodie von gleicher
Giite zu machen.

Ein anderer Theil dieser Kothurnaten lasst sich von dem herrschen-
den Geschmack verfiihren. Da trat vor einigen Jahren ein gewisser
Gothe, den du ohne Zweifel nun aus einigen Ubersetzungen kennst, mit
einem Stiik auf, das seine sehr grosse Schonheiten hat, aber im Ganzen
das abentheuerlichste ist, das je in der Theaterwelt erschienen. Ich
brauche dir weiter nichts zu sagen, um dir einen Begrif davon zu
geben, als dass der Bauernkrieg, unter Kaiser Maximilian, mit bren-
nenden Dorfern, Zigeunerbanden und Mordbrennern mit den Fackeln in

36 Indiana University Studies

der Hand, auf die anschaulichste Art vorgestellt wird. Es heisst, Gotz
von Berlichingen mit der eisernen Hand, und hat verschiedenen Ver-
suchen ungeachtet, zum grossen Leidwesen des deutschen Publikums,
noch nicht auf das Theater gebracht werden konnen, weil die haufigen
Verander ungen der Scenen, die erstaunlich vielen Maschinen und De-
korationen zu viel Aufwand erfodern, und zwischen den Auftritten gar
zu lange Pausen verursachen. Gothe ist wirklich ein Genie. Ich habe
einige andere Theaterstiicke von ihm gelesen, und auffuhren gesehen,
worm man sieht, dass er die Menschen, die wie er, auf ihren zwey Beinen
gehen, in dem alltaglichen Leben eben so gut zu behandeln weiss, als die,
welche auf dem Kopf stehen. Mit Vergniigen sahe ich sein Erwin und
Elmire, eine sehr niedliche Operette, und seinen Klavigo, ein Trauerspiel,
wozu unser Beaumarchais, wie du weisst, den Stof gegeben. Dieses
hat zwar seine starken Ausschweifungen ; aber einem Genie ist alles
erlaubt. Nun drangte sich ein unzahlicher Schwarm von Nachahmer um
den Mann. Sein Gotz von Berlichingen war ein magischer Stab, womit
er einige Hundert Genies auf einen Schlag aus dem Nichts hervor-
rief. Stumpf gegen die wahren Schonheiten des Originals, suchten die
Nachahmer ihre Grosse darin, die Ausschweifungen desselben treulich zu
kopiren. Im Gotz von Berlichingen wird mit jedem Auftritt das Theater
verandert. Ein gutes Stiik musste also nun, der Reihe nach, wenigstens
eine ganze Stadt durchlaufen, von der Kirche an, durch die Rathsstuben,
Gerichtshofe, iiber die Marktplatze, bis zur Wahlstatt. Da Gothe etwas
verschwenderisch mit den Exekutionen umgieng, so wimmelte es nun in
der deutschen Theaterwelt von Scharfrichtern. Shakspear, den Gothe
vermuthlich bloss aus Laune, oder vielleicht in der guten Absicht, um
seine Landsleute auf diesen grossen Dichter aufmerksamer zu machen,
in seinem Gotz zum Muster genommen, Shakspear war nun der Abgott
der deutschen Theaterdichter ; aber nicht der Shakspear, welcher dir die
Menschen wie Raphael in jeder augenbliklichen Stimmung, in alien
Nuanzen der Handlungen, mit jeden Bewegungen der Muskeln und
Nerven, mit jeder Schattirung der Leidenschaften, mit aller moglichen
Wahrheit darstellt; sondern der Shakespear, welcher aus Mangel mit
einer Bekanntschaft mit andern Originalien, und einer gehorigen Aus-
bildung, sich mit aller Gemachlichkeit seiner Laune iiberliess, mit
Fliigeln seines Genies iiber Jahrhunderte, und ganze Weltkreise wegflog,
und sich im Gefiihl seiner vorschwebenden Gegenstande um keine Ein-
heiten, und um keinen Wohlstand kummerte. Ein Geschichtmahler kann
unendlich stark im Ausdruk einzelner Personen oder Partheyen seyn,
und die anstandige Zusammensetzung, das, was man Haltung heisst,
und verschiedene andere Dinge vernachlassigen; aber wenn sein Schuler,
in Nachahmung dieser Nachlassigkeit seine Starke sucht, so ist er wahr-
haftig zu bedauern.

Die Regeln sind keine Sklavenfesseln fur das Genie. Entweder tragt
es sie wie Blumenketten, ungezwungen, leicht, und mit Anstand, oder,
wenn es den Werth dieses Schmuckes nicht kennt, wenn es in seiner
natiirlichen Wildheit auftreten will, so ersezt es durch die unbandige
Starke, womit es seine Gegenstande umfasst, die vernachlassigten Ver-
zierungen. Aber solche stiirmische Genieen sind hbchst selten, und plat-
terdings nicht zum Nachahmen in den Manieren gemacht. England hat

Zeydel: Storm and Stress

37

seit so vielen Jahrhunderten nur einen Shakspear, man muss sagen, ganz
Europa hat nur einen hervorgebracht. Der grosste Theil der kunst-
treibenden Erdensbhne wird immer durch angestrengtes Studiren seine
Grosse suchen miissen, und die Regeln sind zur Prufung des Studiums
gemacht.

Dieser lacherliche Geschmack, durch die Vernachlassigung des Wohl-
standes und der Regeln, durch affektirte Ausgelassenheit, abentheuer-
liche Situationen, abscheuliche Grimassen, und erbarmliche Verunstal-
tungen glanzen zu wollen, hat seit dieser Zeit alle Theile des litterarischen
und kunsttreibenden Deutschlandes angestekt. Man hat junge angeb-
liche Genies in der Menge, die in ihren verschiedenen Fachern, in der
Musik, in der Mahlerey, in andern Theilen der Dichtkunst um so grosser
zu sein, wahnen, je weiter sie sich von den Regeln entfernen, und je
weniger sie studiren. Die Alten dachten anders hieriiber, und die Werke,
welche sie uns hinterlassen haben, werden von diesen vorgeblichen
Urgenien gewiss nicht verdunkelt werden. Virgil verglich seine Pro-
dukten der unformlichen Geburt einer Barin, die bloss durch vieles,
Lecken eine Gestalt bekommen muss, und man sieht dem Terenz und
Plautus gewiss an, dass sie eine Scene ihrer Schauspiele nicht bey einer
Pfeife Tabak volienden konnten. — Du weisst, dass Shakspear auch unter
uns seit einiger Zeit seine Anhanger hat. Aber dazu wird es doch so
leicht nicht kommen, dass seine Ausgelassenheit Regel wird, und wenn
auch gleich Arnaud den Ungeheuern den Weg auf unsere Buhne geofnet
hat so sind sie doch bisher zu selten erschienen, als dass wir Gefahr
liefen, die gewohnlichen Menschen und unsere ehrlichen, bekannten Mit-
biirger durch dieselben davon verdrangt zu sehen.

In der deutschen Sprache machte dieser verdorbene Geschmak eine
merkwiirdige Revolution. Wenn man die Schriften eines Gessners, Wie-
lands, und Lessings liest, so sieht man, dass die Sprache im Gang zu ihrer
Ausbildung war, und nach und nach die Riindung und Politur bekommen
haben wiirde, die zu einer klassischen Sprache unumganglich nothig
ist. Aber den neugeschaffenen Genies war es nicht genug, in ihrer
erzwungenen Wuth einzelne Worter zu verstiimmeln; sondern sie ginger,
mit ganzen Perioden eben so grausam um. Alle Verbindungsworter
wurden abgeschafft, und alle Gedankenfugen getrennt. In vielen neuern
Schriften stehen die Satze alle wie unzusammenhangende Orakelspriiche
da, und man findet keine Unter scheidungszeichen darin, als Punkten,

und ! ! ! und ? ? ? und — . Jeder wollte sich zu seinen an-

masslichen Urideen auch neue Worter schaffen, und du miisstest dich
krank lachen, wenn du gewisse literarische Produkte Deutschlands, die
von vielen fur Meisterstucke gehalten werden, kennen solltest.

A passage in the second volume (pp. 56-61) deals more spe-
cifically with Goethe.

Gothe ist der Liebling des Herzogs. Sie sind Du zusammen. Was
die Natur Herrn Wieland ganzlich versagte, das gab sie Herrn Gothe im
Ubermass. Ehedem verleitete ihn seine Suffisance wirklich zu Aus-
schweif ungen; allein er hat sich seit einigen Jahren merklich geandert.
Er ist nicht nur ein Genie, sondern hat auch wirklich viel Ausbildung.

38

Indiana University Studies

Einige sonderbare Grundsatze trugen mehr dazu bey, als seine natiirliche
Raschheit, dass er — gewiss gegen seine Erwartung — einer Kalmiicken-
horde das Signal gab, den deutschen Parnass, der in voller Bliithe stand,
vor einigen Jahren zu verheeren. Er ist in alien Dingen — aus Grundsatz
— fur das Ungezierte, Natiirliche, Auffallende, Kiihne und Abentheuer-
liche. Er ist der biirgerlichen Polizey eben so feind als den asthetischen
Regeln. Seine Philosophie granzt ziemlich nahe an die rousseauische.
Ich will mich nicht damit aufhalten, sie zu zergliedern. — Als das Gefiihl
seines Genies in ihm erwachte, gieng er mit abgekremptem Hut und un-
frisirt, trug eine ganz eigne und auffallende Kleidung, durchirrte Walder,
Hecken, Berg und Thai auf seinem ganz eignen Weg; Blick, Gang,
Sprache, Stok, und alles kiindigte einen ausserordentlichen Mann an.
Auch in seinen Schriften hielt er eine gewisse Nachlassigkeit fur an-
standiger, als eine gesuchte Delikatesse. Er kiirzte seine Perioden auf
die seltsamste Art ab, nahm veraltete und vulgare Worter an, und
apostrophirte die Halfte der Vokalen, welches fiir die so vokalenarme
deutsche Sprache eben kein Freundschaftsdienst war. Seitdem er sich
aber auch seine Waden und Backen apostrophirt hat, ist er in alien
Sachen geschmeidiger und gelassener geworden. — Seine Schriften ent-
halten sehr viele von den gliicklichen Ziigen, die eine richtige Menschen-
kenntniss mit einer starken und reichen Phantasie und einer piquanten
Laune vereinbaren. In alien sieht man auch, dass er einen Plan anlegen
und ubersehen kann, und Herr von den Mitteln ist, ihn auszufuhren,
wodurch er sich von alien seinen Nachahmern auff allend unterscheidet.
Wenn irgendwo ein Theil nicht sehr genau mit dem Ganzen zusam-
menhangt, so sieht man, dass es nicht aus Ungeschiklichkeit geschah,
sondern er sich nur die Miihe nicht nehmen wollte, denselben besser an-
zukniipfen. Er hat viel Studium, ist ein Kenner der alten und be-
kanntesten neuen Sprachen, zeichnet, ist Musikant, ein guter Gesellschaf-
ter, Bonmotist und herzoglicher Legationsrath.

Ohne Zweifel sieht er jezt selbst ein, dass er der deutschen Lit-
teratur viel geschadet hat. Viele junge Leute glaubten, es ware bloss
um Dreistigkeit, Unverschamtheit, Verunstaltung der Sprache und Ver-
nachlassigung alles dessen, was Ordnung und Wohlstand heisst, zu thun,
um Genies zu werden. Sie behaupteten offentlich, dass alles Studiren,
alle Regel und aller Wohlstand Unsinn, und alles, was natiirlich ist,
schon ware, dass ein wahres Genie keine Bildung nothig hatte, sondern,
wie Gott, alles aus seinem Wesen schopfen, und sich selbst genug seyn
miisste, dass ein Genie berechtigt ware, sich im blossen Hemd, ode? auch
nach Belieben in puris naturalibus, an dem offenen Markt und bey Hofe
zu produziren, dass die kalte Vernunft die Menschen zu Schopsen, eine
umbezahmte Phantasie aber zu Halbgottern machte; dass traumen,
entzucktseyn und rasen der natiirliche und gliickliche Zustand des Men-
schen ware, dass alle Beschaftigungen, wodurch der Mensch sein
tagliches Brod verdiente, ihn unter seine Natur und Wiirde erniedrigten,
dass in der besten Welt die Menschen auf alien vieren gehen, und
Eicheln fressen miissen u.s.w. Du musst nicht glauben, ich iibertreibe.
Ich kann dir das alles urkundlich vor Augen legen. Gothe hatte das mit
Rousseau gemein, dass seine Philosophie (auf falschen oder wahren)
Grundsatzen beruhte, der Liederlichkeit und Ausgelassenheit schmei-

Zeydel: Storm and Stress

39

chelte, und deswegen von Leuten ausgeiibt ward, die gar keine Grund-
satze hatten, sondern durch blinden Glauben an ihren Propheten selig
werden wollten. Seine Jiinger begiengen die lacherlichsten Ausschwei-
fungen, indessen er immer seiner selbst Meister war, und das Eigensin-
nige seines Betragens durch eine Ubereinstimmung desselben mit seinen
Grundsatzen, durch eine gewisse Massigung, und durch eine Umganglich-
keit mit alien Menschen rechtfertigte. Nun erschien ein Schwall von dem
elendesten Geschmiere, das je die Welt gesehen. Ich glaube, viele dieser
Herren waren selbst nicht im Stand, von manchen Stellen ihres Ge-
schreibsels eine Erklarung zu geben. Der platteste Unsinn ward von
Kritikern dieser Parthey als die Quintessenz des menschlichen Witzes
und der menschlichen Phantasie (dem menschlichen Verstand kundigten
sie, wie ich dir oben sagte, offentlich und ausdriicklich den Krieg an)
ausgeschrieen. Wenn man den Beyfall des Publikums, im Grossen ge-
nommen, will verachten lernen, so muss man die Produkte mancher dieser
Herren lesen, die zum Theil noch jezt fur Wunder gehalten werden.
Diese Kalmiickenhorde rekrutirte unter alien Klassen Kiinstler. Es gab
Arzte, die ihr System nach den Glaubensartikeln dieser Schwarmersekte
einrichteten, und lehrten, sich im Schnee walzen, im kaltesten Wasser
baden, Bocksspringe machen, sich auf den Kopf stellen, absturzige Felsen
erklettern, nichts warmes zu sich nehmen, sondern bloss von den rohen
Friichten der Erde leben, der Natur nicht den geringsten Zwang
anthun, sondern sich der Naturlast stehenden Fusses an jedem Ort und
zu jeder Zeit entburden, u. dgl. m. ware alles, was der Mensch sowohl
zur Erhaltung als zur Wiederherstellung seiner Gesundheit thun konnte.
Ein bekannter Doktor, welcher verschiedene Leute durch diese Kur zu
Grunde gerichtet, berief sich in seinen Vorschriften bloss auf das Bey-
spiel der grossen Geister Deutschlands. Wenn er einem Kranken das
kalteste Bad verordnete, und dieser aus Erfahrung befurchtete, er
mochte ein Fieber oder einen Fluss holen, so versicherte ihn der Herr
Doktor, er habe nichts von allem dem zu befurchten, denn der grosse
Gothe gieng mitten im Winter ins Wasser und ins Eis. — Die jungen
Mahler mahlten nichts mehr, als Stiirme, Blitze und Alpengebirge;
Elephanten, Lowen und Tiger; Didonen auf den Scheiterhaufen;
Lukretien und Medeen, die ihre Kinder zerrissen. Alle sanftern Land-
schaften, die alltaglichern Thiere und die gewbhnlichern Situationen der
Menschen schloss jeder aus seinem verschiedenen Fach aus. Um
Zeichnung, Haltung und Wahrheit war es ihnen nicht zu thun. Diese
Kleinigkeiten uberliesse ein Genie, sagten sie, den kalten Vernunft-
menschen und Brodarbeitern. Die Kunst bestand nach ihren Begriffen
darin, dass alles, was sie machten, ausserordentlich ware. Je unnatiir-
licher eine Dido die Arme zerrange, je gewaltsamer sie die Augen ver-
drehte, und je mehr Unordnung im Haar und in der Draperie herrschte,
desto schoner ware sie. — Auf diese Art missbrauchten Kiinstler jeder
Gattung Gdthes Theorie. Seine Anhanger ahmten ihm auf die lacher-
lichste Art in der Kleidung, im Gange, und sogar im Reden nach.

Ganz unschuldig ist er nicht an diesen Ausschweifungen. Er ent-
dekte bey einigen seiner Freunde, z B. Lenz, Klinger und andern,
Funken von wahrem Genie, die durch einige Aufmunterung in lichte
Flammen zu bringen waren. Da er aber einmal angefangen hatte, den

40

Indiana University Studies

Protektor zu machen, so drangten sich auch Leute an ihn zu, die seiner
Protektion ganz unwiirdig waren, und die er geraden Weges wieder zu
ihren Briidern auf die Weide hatte zuriickweisen sollen. Der Kitzel
des Ruhms mochte ihm aber vielleicht nicht missbehagt haben, und er
schamte sich nicht, wenigstens einige Zeit lang wirklich an der Spitze der
Rotte zu stehen. Rousseau war hierin sehr verschieden von ihm. Der
protegirte nicht und kommandirte nicht. — Jezt scheint sich Gothe um das
Litteraturwesen uberhaupt wenig mehr zu bekiimmern. Erarbeitet an einer
Lebensbechreibung des beriihmten Bernards von Weimar und geniesst
das Leben in so weit es sich mit ziemlich welken Lenden geniessen lasst.
Er wird, wie man mir in Weimar sagte, von alien Seiten her, unablassig
mit Rekommandationen bestiirmt, und aus Osten, Westen, Siiden und
Norden besuchen ihn zu Zeiten Jiinger seiner Apostel, in der Hofnung,
angebracht zu werden. Er hat es sich aber jezt zur Re eel gemacht,
mit seiner Protektion haushalterisch zu seyn; und da thut er wohl
daran. Die Sottisen dieser L^ute wiirden alle auf ihn fallen. Es ist auch
keine Folge, dass, wenn die Minister. Rathe und Kabinetssekretare eines
Hofes schbne Geister sind, auch die Kiichen- und Kellermeister, Kammer-
diener, Laquayen, Jager, und endlich auch die Stallknechte schone Geister
seyn miissen.

V

It has been the aim in this paper to show :

1. That only rarely do contemporary writers go into detail
with regard to the origin of the term “Sturm und Drang/'
which to them is the standard designation for the period.

2. That in the earlier writers — Koberstein, Gervinus, and
Vilmar — the term “Sturm und Drang/' altho occurring occa-
sionally, is rather rare, while other designations, such as
“Originalgenie" and “Kraftgenie,” are much more frequent.

3. That “Sturm und Drang" does not become the fixed,
standard phrase before Scherer.

4. That in his Worterbuch article on “Genie," Rudolf Hil-
debrand fails to find a single clear use of the term “Sturm
und Drang" (as a designation for the literary movement)
before Tieck's preface to the edition of Lenz (1828) .

5. That even before he met Kaufmann, Klinger had a pre-
dilection for the two words “Sturm" and “Drang" and hence
was well prepared to accept the new title for his play sug-
gested by Kaufmann.

6. That, contrary to Hildebrand’s belief, the term “Sturm
und Drang" was in use even in the eighteenth century, — as a
slogan as early as 1777, and as a set phrase in 1784 by Knigge,

Zeydel : Storm and Stress

41

in 1793 by Iffland, in 1803 by A. W. Schlegel, in 1819 by
Bouterwek, and in 1827 by Koberstein.

7. That hence the phrase must have been perfectly well
known in the eighteenth century, but was not widely used.

8. That it was not more widely used, perhaps, because
other designations, such as “Genieperiode” and “Kraftgenies,”
containing more of a satirical sting, were better suited to the
prevailingly satirical attitude of the time toward the move-
ment.

9. That Goethe too was familiar with the term but per-
haps had an aversion to it.

10. That Klinger himself and others (to some extent even
Lenz) soon turned away from the movement and ridiculed it,
or at least took a detached view of it.

11. That as a living force the movement hardly survived
the year 1782.

12. That the satirical connotation of “Genie, ” “Original/’
“Kraft,” etc., gained currency very rapidly in the seventies
of the eighteenth century, and became a literary fashion,
actually endangering the future existence of the words “Genie”
and “Original” in the German language. Thus these words
crowded out the other familiar term, “Sturm und Drang.”
This too may help explain the fact that “Sturm und Drang”
occurs so rarely in literature before 1827. After this, when
the satirical attitude toward the movement gradually died
out, “Sturm und Drang” as a designation finally began to come
into its own.

Many passages are quoted from numerous authors to sup-
port these points and to throw light upon the attitude of the
time. Other miscellaneous references in the literature of the
period, finally, are added.

Study No. 72

THE TRANSFORMATION OF BOTTOM.
Moore, Ph.D., Associate Professor of
University.

By John Robert
English, Indiana

(43)

The Transformation of Bottom

By John Robert Moore, Associate Professor of English
in Indiana University

For students of A Midsummer Night’s Dream who remain
unsatisfied with such explanations as Schlegel’s, that “the
droll wonder of Bottom’s transformation is merely the trans-
lation of a metaphor in its literal sense,” it is customary to
seek out analogues for the weaver’s experience in the litera-
ture and oral tradition of magic and witchcraft. In the
present paper it is my purpose to show that altho the widely
accepted doctrine of the possible transformation of man into
the likeness of an ass was no doubt familiar to Shakespeare,1
as well as to his audience, the actual performance of the feat
in A Midsummer Night’s Dream owes much to the stage con-
ventions of the later moralities and interludes.

Many of the stories or instructions concerning magical
practice which have been cited as possible source-material for
the play have no direct relation to the transformation of
Bottom, except in so far as they attest a widespread popular
curiosity in occult matters of the sort. The hero of Apuleius
was not crowned with an ass’s head, but was entirely trans-
formed; and the change was not effected without his knowl-
edge by an unseen spirit, but was due to his own unlucky
use of the wrong ointment, as he was in the act of attempting
to assume the likeness of a bird. The young Englishman in
the kingdom of Cyprus, whose story is retold from Bodin by
Reginald Scot ( The Discoverie of Witchcraft , 1584, Book V,
chap, iii), was at first unconscious of his transformation by
the witch, but he soon discovered his misfortune. He, too,
was completely changed into the physical likeness of an ass,
so perfectly that during the three years of his servitude only
the witches were able to recognize him as a man. Scot him-

1 Frank Sidgwick remarks, in his discussion of the folk-lore of transformations, that
“almost while writing these words I receive first-hand evidence that such a tradition is
not yet extinct in Welford-on-Avon, a village, four miles from Stratford, with which
Shakespeare must have been perfectly familiar.” The Sources and Analogues of “ A Mid-
summer-Night’s Dream,” New York and London, 1908, p. 81.

(45)

46

Indiana University Studies

self analyzes some of the contradictions of the story, in a
passage which Nicholson has regarded ( Notes and Queries,
6th Series, IV, 2) as perhaps the original suggestion for
Bottom’s fondness for hay :

The bodie of man is subject to divers kinds of agues, sicknesses,
and infirmities, whereunto an asses bodie is not inclined: and mans
bodie must be fed with bread, &c. : and not with hay. Bodins asseheaded
man must either eate haie, or nothing: as appeareth in the storie.2

Scot’s recipe for setting “an horsse or an asses head upon
a mans shoulders,” which was first pointed out by Douce as
the original source for Shakespeare, is still further afield.
For present purposes, there is no significance in all of the
elaborate preparation, unless it be taken merely as an addi-
tional proof of the contemporary belief in the possibility of
such a performance :

Cut off the head of a horsse or an asse (before they be dead) other-
wise the vertue or strength thereof will be the lesse effectuall, and make
an earthern vessell of fit capacitie to conteine the same; and let it be
filled with the oile and fat thereof; cover it close, and dawbe it over
with lome: let it boile over a soft her three daies continuallie, that the
flesh boiled may run into oile, so that the bare bones may be seene:
beate the haire into powder, and mingle the same with the oile; and
annoint the heads of the standers by, and they shall seeme to have
horsses or asses heads. If beasts heads be annointed with the like oile
made of a mans head, they shall seeme to have mens faces, as diverse
authors soberlie affirme.3

Much simpler than this elaborate system is the one given
by Albertus Magnus, De Secretis Naturae. Perhaps of all
the analogues from the lore of witchcraft and magic, the
account of a transformation performed by Dr. Faustus is
closest to the spirit of A Midsummer Night's Dream, assign-
ing the feat, as it does, to the whimsical prank of a magician,
who entertains his subjects with revelry until the time of
their enchantment has expired:

In this, and such pastime they passed away the whole day; when
night being come Dr. Faustus bid them all to supper, which they lightly
agreed unto, for students in these cases are easily intreated; wherefore
he promised to feast them with a banquet of fowl, and afterwards
they would all go about with a mask. . . . Dr. Faustus commanded

every one to put on a clean shirt over the other cloaths: which being
done, they looked one upon another; it seemed to each one of them that

2 Reginald Scot, The Diseovei'ie of Witchcraft, Nicholson reprint, London, 1886, p. 99.

3 Ibid., p. 315.

Moore: The Transformation of Bottom

47

they had no heads; and so they went forth unto certain of their neigh-
bours, at which sight the people were most wonderfully afraid, and
as the use of Germany is, that wheresoever a mask entreth, the good
man of the house must feast them; so as these maskers were set to their
banquet, they seemed again in their former shape with heads, insomuch,
that they were all known who they were; and having sat, and well eat
and drank, Dr. Faustus made that every one had an ass’s head on,
with great and long ears, so they fell to dancing and to drive away
the time until it was midnight, and then everyone departed home, and
as soon as they were out of the house, each one was in his natural shape,
and so they ended and went to sleep.4

But even here the differences are great: the students were
not unwilling or apparently unconscious victims of the
magician, but were so much pleased with this and the rest
of “Faustus’s jesting tricks’’ that

Dr. Faustus was invited unto the students that were with him the
day before, where they had prepared an excellent banquet for him. . . .
Dr. Faustus asked leave to depart, but they would in no wise agree to
let him go, except that he would promise to come again presently.5

In all of these analogues it will be observed that two es-
sential features of the transformation of Bottom are never
found: the hero does not remain the unwitting victim of a
trick, and he is not led to expose himself still further by the
seductions of feminine beauty.

Both of these elements are fairly well represented in the
moralities and interludes, where it sometimes happens that
the hero is lulled to sleep (usually by singing) in the midst
of a company of beautiful women; and that while he is still
in slumber, or is otherwise under their influence, he is sub-
jected to gross indignities, or is even transformed by means
of a false head.

Something of this sort is implied by a stage direction in
Ane Satyr e of The Three Estaitis:

Heir sail the Ladies sing ane sang, the King sail ly doun
amang the Ladies, and then Veritie sail enter. 6

In The Marriage of Wit and Science Idleness sings Wit to
sleep in her lap, and then causes her son Ignorance to ex-
change garments with him. On awaking thus metamor-
phosed, Wit has great difficulty in establishing his own

4 The History of the Damnable Life and Deserved Death of Dr. John Faustus, chap,
xliii. Early English Prose Romances, ed. William J. Thoms, 2d ed., London, 1858, Vol. III.

5 Ibid., chap. xliv.

6 The Poetical Works of Sir David Lyndsay. ed. by David Laing, Edinburgh, 1879,

II, 58.

48

Indiana University Studies

identity.7 In The Cobler’s Prophecy Mars is lulled to sleep
by the singing of Venus, who then leaves Folly to make music
for her abused lover while she runs away with Contempt.8 *
In The Marriage of Wit and Wisdom a partial transforma-
tion is called for by one stage direction :

Here shall Wantonis sing this song to the tune of “ Attend the goe
plage the;” and hauing sung him i a sleepe vpon her lappe, let him snort;
then let her set a fooles bable on his hed, and colling his face: and
Idlenis shall steale away his purse from him , and goe his wages*

This last corresponds closely with some features of a lost
play, The Cradle of Security , as it was described in 1639 by
a man of seventy-five years who had seen it in his boyhood :

The play was called The Cradle of Security, wherein was per-
sonated a king or some great prince, with his courtiers of several kinds,
among which three ladies were in special grace with him; and they
keeping him in delights and pleasures, drew him from his graver coun-
sellors, hearing of sermons, and listening to good councell and ad-
monitions, that in the end they got him to lye down in a cradle upon
the stage, where these three ladies joyning in a sweet song, rocked him
asleepe, that he snorted againe; and in the mean time closely conveyed
under the cloaths wherewithall he was covered, a vizard, like a swines
snout, upon his face, with three wire chains fastened thereunto, the
other end whereof being holden severally by those three ladies; who fall
to singing againe, and then discovered his face that the spectators might
see how they had transformed him, going on with their singing.10

It is clear that the vizard, “like a swine’s snout,” was a
theatrical property of great importance in the play, so much
so that it was distinctly remembered by Mr. Willis after a
lapse of more than sixty years.

In A Midsummer Night's Dream some such property head
is certainly implied in the Folio direction:

Enter Piramus with the Asse head.

This direction, omitted by the Quartos, was tamely changed
by Rowe and Pope to “an Ass Head.” To Furness, the ex-
plicit reference of the Folio was a proof that the Folio edition
was printed directly from the prompter’s copy of the play:

In all modern editions this is of course changed to ‘an Ass’s head,’
but the prompter of Shakespeare’s «tage, knowing well enough that

7 The Marriage of Wit and Science, Hazlitt-Dodsley, II, 374ff.

8 The Cohler’s Prophecy, ed. by A. C. Wood and W. W. Greg, Malone Society, 1914,
11. 993ff.

8 The Marriage of Wit and Wisdom, An Ancient Interlude , . , ed. by J. O. Halliwell,
Shakespeare Society, London, 1846, pp. 20-21.

10 Quoted from Mount Tabor, or Private Exercises of a Penitent Sinner , 1639, by R. W.
[R. Willis], in the Boswell-Malone Shakespeare, London, 1821, III, 29.

Moore: The Transformation of Bottom

49

there was among the scanty properties but one Ass-head, inserted in
the text ‘with the Asse head’ — the only one they had.11

I cannot but think that this trifling expression stamps this stage-
direction as taken from a play-house copy.12

Whether or not Collier and his successors have been right
in conjecturing that the play in question was A Midsummer
Night’s Dream, it is evident that a theatrical property ass-
head was a principal feature of the sacrilege committed by
a Mr. Wilson who was censured by the Commissary General,
John Spencer, for enacting “a play or Tragidie” — elsewhere
called a comedy — at the house of John Williams, bishop of
Lincoln, on Sunday, September 27, 1631 :

Likewise wee doe order that Mr. Wilson because hee was a spe-
ciall plotter and Contriver of this busines and did in such a brutishe
Maner act the same with an Asses head, therefore hee shall vppon
Tuisday next from 6 of the Clocke in the Morning till sixe of the Clocke
at night sitt in the Porters Lodge at my Lord Bishopps house with his
feete in the stockes and Attyred with his Asse head and a bottle of haye
sett before him and this superscripcion on his breast:

Good people I have played the beast
And brought ill things to passe
I was a man, but thus have made
Myself e a Silly Asse.13

But militant Puritanism was hardly more unfavorable to
the presentation of Bottom’s enchantment than was the spirit
of the court. With the development of the masques and,
later, of post-Restoration splendor in the presentation of
Shakespeare, all sense of mystery in the enchantment of
mortals was at an end. Man-monkeys could come down freely
from the trees to enter into the dance, and the physiognomy
of an actor could be falsified at will for the sake of a bizarre
effect. It is curious to note that Pepys, who had nothing to
say in favor of A Midsummer Night’s Dream, was immensely
fond of the unimaginative extravaganzas which supplanted it.

It may be reasonably supposed that A Midsummer Night’s
Dream owes something to the popular moralities for its use
of a property false-head as an efficient substitute for the
elaborate preparations so requisite in authentic witchcraft;
and that the encounter of Bottom with the ladies of the fairy
court is akin to the frequent experiences of the morality

11 A Midsummer Night’s Dream (New Variorum Edition), Preface, xv.

12 Ibid., note on III, i, 116.

13 Lambeth Ms. 1030, art. 5, p. 3, as given in The Shakespeare Allusion-Book,
London and New York, 1909, I, 352.

50

Indiana University Studies

heroes in the seductive company of beguiling women. Shakes-
peare has varied the theme greatly by his replacement of
the Vices with fairies: Puck’s motive is not theft, or moral
injury to Bottom, but fun; and Titania is not a temptress,
but an unwitting partner in the hero’s enchantment. The
extravagant speeches of the attendant fairies in Titania’s
bower are not intended as conscious mockery of the hero, as
are the song and dance of The Cobler’s Prophecy; the music
played for Bottom is not meant to stupefy him or to lull his
moral sensibilities, but is the honest “Musicke Tongs, Rurall
Musicke” for which he has expressed a preference ; and
afterwards the awakened weaver, in his stolid inability to
comprehend what has befallen him, or to believe that his
strange adventure can have been more than a dream, becomes
more British and more profound than any of his predecessors.

But A Midsummer Night’s Dream seems, in each of these
passages, distinctly reminiscent of the earlier treatment of
metamorphosis in the moralities. It is likely enough that the
'‘tedious brief scene” of Pyramus and Thisbe was not the only
episode in Shakespeare’s comedy which was recognized by the
Elizabethan audience as presenting, at least in part, a travesty
of the plays of lesser dramatists.

VOL. XIII

December, 1926

Indiana University
Studies

Study No. 73

COMPARATIVE MORPHOLOGY OF THE ORIENTAL
MAYDEAE. By Paul Weatherwax, Associate Professor
of Botany, Indiana University.

For Sale by the University Bookstore, Bloomington, Ind., Price 25 cents.

The Indiana University Studies are intended to furnish a
means for publishing some of the contributions to knowledge made
by instructors and advanced students of the University. The
Studies are continuously numbered; each number is paged inde-
pendently.

Entered as second-class matter, June 14, 1918, at the post-office at Bloomington,
Ind., under the act of August 24, 1912. The Indiana University Studies are pub-
lished four times a year, in March, June, September, and December, by Indiana
University, from the University Office, Bloomington, Ind.

Indiana University Studies
Vol. XIII

December, 1926

Study No. 73

COMPARATIVE MORPHOLOGY OF THE ORIENTAL
MAYDEAE. By Paul Weatherwax, Associate Professor
of Botany, Indiana University.

Publication No. 23 of the Waterman Institute for Scientific
Research

COMPARATIVE MORPHOLOGY OF THE ORIENTAL
MAYDEAE

By Paul Weatherwax

Associate Professor of Botany, Indiana University

The widespread interest that has been shown for many
years in the origin and botanical nature of maize attaches an
unusual interest to all grasses thought to be at all closely
related to this unique plant. Its close relationship to Tripsa-
cum and Euchlaena, of the American tropics, is generally con-
ceded; but four other genera, of the Eastern Hemisphere,
which systematists have usually placed in the same tribe with
Zea, have never been studied in sufficient detail to afford any
substantial foundation for their taxonomic position.

Bentham and Hooker (2) include Zea, Euchlaena, Tripsa-
cum, Coix, Polytoca, Sclerachne, Chionachne, and Pariana
under the tribe Maydeae. Hackel (3) adopts the same classifi-
cation except for Pariana, which is placed with the Hordeae.
Baillon (1) treats Pariana as a monoecious form of the Hor-
deae, and the other seven genera as a hardly separable subdi-
vision (Maydeae) of the Andropogoneae. More recent writers
have generally omitted Pariana from the Maydeae; and
some have substituted the tribal name Tripsaceae for Maydeae.

Representative species of the genera not native of America
have been under observation by the writer for several years ;
and, altho the data collected thus far are far from com-
plete, they are given here for the use of other investigators —
especially those interested in maize — who may not have been
able to examine the plants, or to secure detailed, significant
descriptions. Seeds and herbarium specimens of Polytoca,
Sclerachne, and many varieties of Coix have been secured
from their native habitats, and several generations of these
plants have been grown in the greenhouse. Only herbarium
specimens of Chionachne have been available. It is intended
here to describe only the general anatomy of the plants, in
comparison with what is known about maize, and to discuss

2—37729

(3)

4

Indiana University Studies

briefly the probable relationships. More detailed studies will
probably be undertaken later.

Coix

We are greatly indebted to Sir George Watt for bringing
together, in 1904, the available information about Coix (5).
He gives a resume of the accounts of the plant in old works
on medicine, horticulture, and natural history back to the
time of Pliny, together with information obtained from ques-
tionnaires sent out to all parts of India where Coix was found.

The genus occurs wild in southern and eastern Asia and in
the islands of the Pacific, and cultivated or as an escape from
cultivation thruout all tropic and warm regions of the
world. Three more or less distinct species have been de-
scribed: C. Lachrymo-J obi L., C. gigantea Koen., and C.
aquatica Roxb. Examination of a large number of specimens
from many localities, however, shows so many intergradations
and so little consistent correlation of diagnostic character-
istics that, in a morphological consideration, the genus may
as well be treated as a monotype, which is, indeed, the disposal
that is made of it by many taxonomists.

Plants that I have been able to grow in the field and in the
greenhouse have embodied the principal significant charac-
teristics of the genus as indicated in the taxonomic descrip-
tions. The plant ordinarily has an upright stem one to eight
feet in height, and some varieties are much taller in the trop-
ics. One Indian variety is said to be a floating aquatic weed,
sometimes reaching the length of 100 feet (5). The primary
stem branches freely from the base, and branches may arise
from practically any cauline node. As the time for flowering
approaches, the ultimate branches appear, often in dense fas-
cicles in the axils of the upper leaves (Figs. 1 and 2). The
pith of the stem is solid, as in other species of the Maydeae
and Andropogoneae.

The leaves are usually glabrous or slightly roughened on
the upper surface, but those of some varieties bear on their
sheaths and blades short, unicellular hairs, which spring
from a peculiar gland-like base (5). Sometimes vegetative
parts of the plant are covered with a white, waxy “bloom,”
which is usually associated with a penetrating odor much like
that of tobacco.

Weatherwax: The Oriental Maydeae

5

Most varieties are annual, the plant dying soon after seed
production, but some are perennial. In the greenhouse some
of the perennial varieties regularly produce two crops of
flowers and seeds each year, flowering in March and Septem-
ber. No rhizomes or other underground organs of food stor-
age are produced, and continuity of propagation in the peren-
nial forms is secured by basal suckers. It is doubtful if the
plants could undergo any considerable period of dormancy
due to either cold or drought.

Fig. 3.
pistillodium

A staminate flower of Coix.
(rudimentary pistil).

s, stamen; 1, lodicule; p,

Inflorescence. — The most striking feature of the plant is
the hard shell covering the female spikelet and caryopsis
(Figs. 1, 2, and 4-11). As will be shown in detail later, this
consists of a single greatly modified leaf sheath, whose pecu-
liar conical or pyriform shape and glistening appearance long
ago gave to the widely distributed form of the plant the
common name “Job’s Tears,” by which it is known all over the
world and in many languages.

6

Indiana University Studies

The spikelets are arranged in a panicle, whose primary
branches are so reduced in structure that the whole inflores-
cence appears to be a spike-like raceme. On the lower part of
the rachis is usually a single pistillate spikelet, enclosed, with
some other structures, in the spathe mentioned above. Above
this, alternately arranged in pairs or groups of three, are
thirty to a hundred staminate spikelets, each group consisting
of sessile and pedicelled members (Figs. 1, 2). Rarely there
may be as many as two or three pistillate spikelets in a row at
the base of the inflorescence (Figs. 11, 15).

The staminate spikelets are borne close together in a com-
pact group, whose peduncle varies in length and thickness.
The whole structure may be erect or nodding. The spikelets
are usually erect on the rachis, but in some varieties (Fig. 2)
they are definitely reflexed at maturity. The staminate spike-
let and its flowers are the same as those of maize in significant
structure (Fig. 3).

The spathe surrounding the pistillate spikelet subtends and
encloses an axillary group which is of great interest (Figs.
4-7). This is really a short branch on which the pistillate
spikelet is apparently terminal. Below this spikelet are two
sterile pedicels attached at different levels, and doubtless at
different nodes, and finally a prophyllum (Fig. 4).* The ster-
ile pedicels are doubtless the homologues of two spikelets of
the staminate groups of three. This observed structure is
exactly in accord with the generally accepted interpretation
of the groups of two or three spikelets which occur regularly
thruout the Maydeae and Andropogoneae. It is interesting to
note that here, inside a highly specialized enveloping organ,
where we should expect to find extreme reduction of parts,
there should occur, as a homologue of the group of three
staminate spikelets, a branch so little reduced in structure as
to show its prophyllum and its three spikelets apparently at-
tached at different nodes.

The prophyllum is unequally divided into two lobes at the
top, and its two nerves are unequal in size. The two sterile
pedicels are large and inflated or filled with a loose paren-
chyma. Rudimentary bracts or floral organs often develop at
their tips.

* In one variety examined since this paper was written, two small rudiments seem
to occur regularly on this axis above the prophyllum. It seems reasonable that these are
the bracts subtending the two sterile pedicels.

W eathenvax :

The Oriental Maydeae

7

Figs. 4-11. The pistillate spikelet and spathe of Coix. Fig. 4.
Longitudinal section. Figs. 5-7. Transverse sections at different levels.
Figs. 8, 9. Leaf sheaths more or less indurated. Fig. 11. Two pistillate
spikelets at the base of an inflorescence La, lamina, and Li, ligule of
spathe; G, glume; L, lemma; P, palea; St, staminodium (rudimentary
stamen) ; Ab, aborted flower; N, node at which the pistillate branch is
borne, and at which the rachis disarticulates at maturity; Ped, sterile
pedicel; Sp, spathe; R, rachis of inflorescence; 0, ovule; Pr, prophylium;
B, base of pistillate branch.

8 Indiana University Studies

The pistillate spikelet (Figs.
4-7) has the same parts as that
of maize except that the palea
of the aborted flower is lacking.
The staminodia usually develop
a little farther than those of
maize before disorganization be-
gins. The glumes and lemmas
are thick and succulent and not
at all indurated. When mature
and dry they are thin and deli-
cate.

The upper (adaxial) flower of
a sessile spikelet of a staminate
group sometimes develops a
functional pistil and sets a
seed. This anomaly often oc-
curs in several flowers of the in-
florescence, especially late in the
fall or when the plants are part-
ly shaded during development.
All varieties of the plant that have been observed seem to show
a marked sexual sensitiveness toward the intensity of illu-
mination. Varieties producing fifty or more staminate to one
pistillate spikelet in full summer sunlight may reduce the ratio
to two or three staminate to one pistillate in the greenhouse
even in summer, and become completely female in the green-
house in winter (Figs. 12, 13).

Fruit. — The characteristic structure of the plant is the
fruit, which, in a broad sense, consists of the spathe and all
parts included within it at maturity. It varies greatly in size,
shape, color, and texture (Figs. 14-18). In some varieties it
is short and globular; in others it is long and almost cylin-
drical, or sometimes curved. It may vary from an eighth of
an inch to half an inch in length, in the globular forms, and
the cylindrical forms may be much longer.

The outside of the spathe is usually hard and shining, but
in some of the cultivated varieties the whole structure is thin
and husk-like or striated with indurated ridges. The hard-
shelled types are said to change to soft-shelled types when

of Coix with staminate portions
lacking or greatly reduced.

Weatherwax : The Oriental Maydeae

9

Figs. 14-18. Fruits of Coix. Fig. 14. The Type commonly used
for beads. Fig. 16. A soft shelled variety (Ma-yuen) used as a cereal.
Fig. 17. Fruits deeply grooved along one side. Fig. 18. Long, curved
or cylindrical fruits of the variety stenocarpa.

Figs. 19-21. Caryopsis of Coix. Fig. 19. The cereal type shown
in Figure 16. Fig. 20. Elongated caryopsis of the variety shown in
Figure 18. Fig. 21. Small caryopsis from the relatively large fruit
shown in Figure 15.

brought under cultivation (5, p. 194), a genetic change whose
mechanism would make an interesting study. When for any
reason fecundation fails to occur, the spathe soon ceases devel-
opment and dies without becoming indurated and silicified.
The resulting chalky-white blind fruit is readily distinguished
from fully developed fruits.

Disarticulation of the fruit from the peduncle at maturity
leaves a tiny opening thru the base of the spathe, connecting
with the interior cavity, which is, of course, open also at the
top. When this opening is large enough the fruits may be
strung as beads, and this is the principal use of the hard-
shelled varieties.

Two-seeded fruits are occasionally found, due to the occur-
rence of two pistillate spikelets within one spathe. In some
such cases the upper spikelet may have a poorly developed
spathe of its own, the whole being included in the spathe of
the lower (6).

The caryopsis, or fruit proper, depends for its size and
shape very largely upon the nature of the space in which it
develops inside the spathe. It is usually oval or elongated, and
deeply grooved over the embryo, along the side which is in
contact with the rachis and sterile pedicels (Figs. 19-21). The
reserve food in the endosperm is usually rich in starch, but in

10

Indiana University Studies

Figs. 22-24. Fig. 22. Inflorescence of Polytoca. Fig. 23. In-
florescence of Sclerachne. Fig. 24. Inflorescence of Chionachne.

some varieties it resembles that of waxy maize (4), being
rich in erythrodextrin. The caryopsis of the soft-shelled vari-
eties is widely used as a cereal in the Orient (5, 8).

An occasional leaf sheath at the base of a fascicle of inflor-
escences may become hard and shining like the spathe, thus
bearing out in a measure our conception of the homologies of
the spathe (Figs. 8, 9).

Polytoca

The only accounts of Polytoca that have been available are
the taxonomic descriptions of the genus ; and, in so far as I
am informed, no account of any greater detail than the de-
scriptions of its three or four species has ever been published.
I have had access to excellent herbarium material and to
living plants of Polytoca barb at a Stapf. grown from seeds
received from India.

This plant is a tall, slender annual, much branched at the
base. The cauline branches are short and chiefly limited to
the function of flower-bearing. The nodes are densely bearded
(Fig. 22), and the leaf blades and upper parts of the sheaths

W eatherwax : The Oriental Maydeae 11

are more or less thickly beset with stiff, sometimes papillose,
hairs. The plant shows no tendency to be perennial.

The inflorescences are mostly clustered at the ends of long
branches which arise from the axils of the uppermost leaves
(Fig. 22). The inflorescence is a modified panicle, as in Coix;
its lower half is enclosed in a loose, inflated spathe. There is
some doubt as to the homology of this spathe with the
indurated one of Coix. The basal spikelet is pistillate; above
it are five to ten pairs of staminate spikelets (Fig. 25).

The pairing of the spikelets, while similar to that in other
Maydeae, and in the Andropogoneae, presents a different
appearance because of the union of the pedicel of one spikelet,
for at least a part of its length, with the rachis. In most of
the Andropogoneae, and in the American Maydeae, each
phytomer bears its characteristic group of two or three spike-
lets at its lower end. But in Polytoca a disarticulated phy-
tomer regularly bears at its lower end a sessile spikelet, and
at or near its upper end, a short-pedicelled or sessile one,
depending upon the extent of the fusion of the pedicel with

Fig. 25. Portion of inflorescence of Polytoca, with spathe removed.
St, staminate spikelets; R, rachis of inflorescence; P, pistillate spikelet;
Sp, node at which the spathe was attached.

Figs. 26 and 27. Pairing of spikelets in Polytoca. SS, sessile
staminate spikelet; PS, pedicelled staminate spikelet, whose pedicel (P)
is partly united with the rachis (R); F, pistillate spikelet; St, sterile
pedicelled mate of the pistillate spikelet, the pedicel being united with the
rachis; S, style.

12

Indiana University Studies

Figs. 28-31. Fig. 28. Pistillate spikelet of Polytoca in longtiudinal
section. Figs. 29-31. Pistillate spikelets of Polytoca in transverse sec-
tion. G, glume; L, lemma; P, palea; Ab, aborted flower; S, style; Ped,
sterile pedicelled spikelet, or its pedicel; R, rachis, united with the
pedicel in Fig. 30; O, ovule; St, staminodium; N, nodal parenchyma.

Weatherwax: The Oriental Maydeae

13

the rachis (Figs. 26, 27). The pedicelled mate of the female
spikelet occurs as a rudiment near the top of the phytomer
(Fig. 27).

The staminate spikelet is similar to that of Coix.

The pistillate spikelet is entirely surrounded by the lower
glume, which becomes hard and shining at maturity and bears
a deceptive resemblance to the spathe of Coix. At its top
is a thickened ridge suggesting a ligule. The overlapping
edges of this stony glume fit closely together and partly sur-
round the rachis (Figs. 29, 30), forming a very efficient pro-
tective covering for the other parts of the spikelet and later
for the seed. This glume remains soft and chalky-white if
fertilization does not occur.

Except for this outer glume the pistillate spikelet is very
similar to that of Coix (Figs. 28-31). The staminodia are
more rudimentary than those of Coix; the styles are united
for some distance at the base.

No perfect flowers, or flowers with reversed sexuality, have
been observed in this plant, but there is a slight reduction in
the ratio of male to female spikelets when plants are grown
in reduced light.

In the node of the rachis at the base of the pistillate
spikelet the pith presents a peculiar structure (Figs. 28, 31).
At first completely filling the nodal cavity, it later splits loose
from surrounding tissues and remains apparently suspended
by the vascular strands which enter and anastomose within
it. When the mature fruit breaks off at this node this body
of nodal parenchyma is left protruding from the base of the
outer glume (Fig. 32). The significance of this structure
is not known, but, inasmuch as its size and shape vary with
its water content, it may have some physiological role in
the germination of the seed.

Sclerachne

The genus Sclerachne is represented by a single species,
S. punctata R. Br., which occurs only in Java. Several genera-
tions of the plant have been grown in the greenhouse.

The descriptions and the specimens received from Java in-
dicate that the plant is a more or less erect annual. Plants
that I have grown tend more to a prostrate habit. Vegeta-
tively this species resembles Polytoca barb at a, but the latter

14

Indiana University Studies

Figs. 32 and 33. Fig. 32. Dorsal and ventral views of the fruits
of Polytoca. Fig. 33. Dorsal and ventral views of the fruits of
Sclerachne. In each group the caryopsis is shown in the figures in the
middle.

Figs. 34-36. Pairing of spikelets in Sclerachne. S, staminate
spikelet; F, pistillate spikelet; R, rachis; St, sterile pedicel accompany-
ing pistillate spikelet; P, pedicelled staminate spikelet; S, sessile stami-
nate spikelet. The spikelet terminating the rachis is sessile, and its
pedicelled mate is lacking.

is consistently taller and more slender. The leaves and stems
are glabrous or somewhat ciliate.

The homologue of the spathe seen in Polytoca is here more
of the nature of a foliage leaf. The spike bears one or two
basal pistillate spikelets each, accompanied by a rudiment, and
above these only one to three staminate spikelets (Fig. 23).
Altho modified by the small number of staminate units, the ar-
rangement of the spikelets is the same as in Polytoca (Figs.
34-36).

No significant peculiarity of the male or female spikelets
has been noted, except that in the former the functional
androecium is sometimes reduced to a single stamen. The
ligule-like appendage at the top of the outer glume of the

Weatherwax: The Oriental Maydeae 15

pistillate spikelet is longer and thinner than in Polytoca. The
middle portion of this glume has a conspicuous papillose, or
almost tuberculate, roughening (Figs. 33, 34). The basal
plug of parenchyma is present as in Polytoca (Fig. 33).

No sexual anomalies have been noted in Sclerachne, and it
seems not to be materially affected sexually by environmental
conditions.

Chionachne

My investigation of Chionachne has been limited to a study
of good herbarium specimens of C. cyathopoda Fr.M., and
fragmentary specimens of one or two other species, from Aus-
tralia. This plant closely resembles Polytoca and Sclerachne
in vegetative habit, and its inflorescence combines some of
the characteristic features of both.

The inflorescence is the same modified panicle seen in the
other genera (Fig. 24). The pistillate spikelets, usually five
or six in number, are borne in a dorsiventral row on the lower
part of the rachis. Above these are twenty or more staminate
spikelets. The pairing of the spikelets, and fusion of the
pedicel with the rachis is the same as in Polytoca and
Sclerachne. The base of the inflorescence is enclosed in a
loose spathe.

The outer glume of the pistillate spikelet is less indurated
than that of Sclerachne, but otherwise the two are much alike

Figs. 37 and 38. Pistillate spikelet of Chionachne. P, pistillate
spikelet ; R, rachis ; St, sterile pedicel ; Sp, base of spathe, which has been
removed; N, nodal pith.

16

Indiana University Studies

(Figs. 37, 38). In so far as can be determined from the
material at hand, the spikelets closely parallel those of Poly-
toca and Sclerachne in structure.

Probable Relationships

A tabulation of similarities between the American Maydeae
and those of the Orient gives an apparently valid basis for
placing them in the same group at least for convenience. But
to assume a close natural relationship among the genera is
probably not warranted by the most significant evidences.

Monoecism is the chief unifying characteristic of the
Maydeae, but it is the result of a very general tendency thru-
out the Gramineae, especially the Panicatae, toward the differ-
ential abortion of parts of the flower. The occurrence of mon-
oecism, dioecism, or polygamy is so common in the grasses
that the sexual condition cannot be regarded as a strong
criterion in the absence of good support of other kinds, or
in spite of evidences of inconsistency.

In all the Maydeae the fruit is wholly or partly covered by
an indurated shell, which is an especially attractive superficial
indication of relationship. Its relative absence in Zea may be
explained by the unusually complicated covering of husks, or
as a result of conscious selection by man. But this general
occurrence of a hard shell is a deceptive analogy, rather than
a homology. The indurated structure is a combination of a
glume and an alveolus of the rachis in Tripsacum and
Euchlaena, a spathe in Coix, and a glume in Polytoca,
Sclerachne, and Chionachne. A tendency toward induration
of something connected with the fruit seems, therefore, to be
all that the genera have in common, and this is possessed by
so many other genera of grasses as to be of little significance
in determining tribal relationships.

Geographically the Maydeae are sharply divided into two
groups, one in each hemisphere, and neither has ever made
its way into the field of the other without the help of man.
On the other hand, all the genera of each group overlap suffi-
ciently in distribution to suggest an American progenitor and
another in Australasia.

The comparative morphology of the genera suggests the ar-
rangement of the Maydeae in four categories of phylogenetic
relationship :

Weatherwax : The Oriental Maydeae

17

1. Zea and Euchlaena. The evidences of relationship be-
tween these have been discussed elsewhere (6).

2. Tripsacum. Except for monoecism this genus resem-
bles some of the Andropogoneae, such as Manisuris, much
more than the other Maydeae.

3. Coix. The indurated spathe, and the usual occurrence
of the spikelets in groups of three, separate this genus from
the other Maydeae. Its sexual condition is also much less
stable than that of the other oriental genera.

4. Polytoca, Sclerachne, and Chionachne. There is a close
similarity among these genera in the fusion of the pedicel of
the spikelet with the rachis, the induration of the outer glume
of the pistillate spikelet, and the peculiar structure of the
parenchyma in the node of the rachis at which the pistillate
spikelet is attached.

In habit, structure of inflorescence, nature of the caryopsis,
and geographical distribution there is evidence of relationship
between the last two of these groups. But there is little to
indicate clearly the position of these four eastern genera with
reference to the other Maydeae or any other tribe. Among
the American genera Zea and Euchlaena present a similar
problem.

The writer is greatly indebted to a number of persons and
institutions for material and information received in connec-
tion with this study. Seeds and herbarium specimens of
Polytoca and Coix were received from K. Rangachariar,
Coimbatore, India, and R. W. Shide and W. Burns, Poona,
India. Seeds and herbarium specimens of Sclerachne were
sent by the Botanical Garden of Buitenzorg. C. T. White,
of the Botanic Gardens of Brisbane, Queensland, supplied
the material of Chionachne. The Office of Seed and Plant
Introduction, of the U.S. Department of Agriculture, placed
at my disposal the seeds of many varieties of Coix from India
and the Philippine Islands.

Literature Cited

1. Baillon, H. Histoire des plantes. Paris. 1894.

2. Bentham, G. and Hooker, J. D. Genera plantarum.

London. 1853.

3. Hackel, E. Gramineae. In Nat. Pflanzenfam. Leipzig.

1889.

18

Indiana University Studies

4. Kempton, J. H. Waxy endosperm in Coix and Sorghum.

Journal of Heredity 12:896-400. 1921.

5. Watt, Sir George. Coix spp., or Job’s Tears: A review
of all available information. Agric. Ledger 11:189-229.
1904.

6. Weatherwax, Paul. The evolution of maize. Bull. Torrey

Club 45:309-342. 1918.

7. Anomalies in maize and its relatives. I. Bull.

Torrey Club 48:253-255. 1921.

8. Wester, P. J. Adlay: its culture and uses. Circ. Dept.

Agr. and Nat. Res. Philippine Is. 128. 1925.

Vol. XIV

March, 1927

INDIANA UNIVERSITY

STUDIES

Study No. 74

INDIANA UNIVERSITY BUREAU OF
SCIENCE SERVICE

For Sale by the University Bookstore, Bloomington, Ind., Price 25 cents.

The Indiana University Studies are intended to furnish a
means for publishing some of the contributions to knowledge made
by instructors and advanced students of the University. The
Studies are continuously numbered; each number is paged inde-
pendently.

Entered as second-class matter, June 14, 1918, at the post-office at Bloomington,
Ind., under the act of August 24, 1912. The Indiana University Studies are pub-
lished four times a year, in March, June, September, and December, by Indiana Uni-
versity, from the University Office, Bloomington, Ind.

VOL. XIV

Indiana University Studies

March, 1927

Study No. 74

INDIANA UNIVERSITY BUREAU OF
SCIENCE SERVICE

“We are a people of 110,000,000 on a continent where we have al-
ready developed the large proportion of our national resources, a popula-
tion growing .... in the next fifty years .... to perhaps two hundred
million people. We must face the solemn economic fact that unless we
develop through science the greater utility of our resources, expand by
discovery their usefulness, we cannot maintain the standards of living
.... that we now enjoy.” — Secretary Herbert Hoover, before the U.S.
Bureau of Standards.

“I cannot miss this opportunity of pointing out the remarkable fact
that since Faraday every great advancement in the art of electrical
communications originated, not in the operating rooms of this art or in
the research laboratories of the industries, but in the research labora-
tories of the universities.” — M. I. Pupin (the inventor who made possible
long distance telegraphy and telephony) before the recent meeting of the
American Association for the Advancement of Science.

Contents

Science and Research in Indiana University 3

Object of the Bureau of Science Service 3

Service the Bureau Proposes to Render 5

Organization of the Bureau 6

Past and Future Services of the Bureau 12

Botany 12

Chemistry 12

Geology 14

Physics 18

Conditions under which Service is Offered 19

Science Service in Other Fields iii

— 2 —

Science and Research in Indiana University

It has been more than a third of a century since Indiana
University began active cooperation with the citizens and in-
dustrial interests of the state by supplying them with expert
information in certain fields of science and by conducting or
directing researches on problems whose solution was solicited.
For a quarter of a century the number of questions and prob-
lems offered for solution increased from year to year at about
the same rate as the increase in the number of students en-
rolled in science and in the number of instructors on the staff
of the science departments of the University. Under these
conditions each department could, and did, render the service
demanded — in its own way, independently of other depart-
ments. But with the recent tremendous increase in the num-
ber of questions demanding solution and in the amount of re-
search work that needs be done, an increase during the past
few years that has far outstripped the growth of the state in
population, and the University in the size of its science facul-
ties and their laboratory space and equipment, the University
finds that it must organize and further equip its science staff
in order to serve the state most efficiently. Indeed, the need
of organization was apparent some ten years ago and at that
time was met in part by the creation of the Waterman Insti-
tute for Research in Indiana University and further by the
organization of a University Research Committee. The fact
that one of the members of the University Committee was then
chairman of the Research Committee of the Indiana State
Council of Defense and later Director of Research in the Af-
filiated Colleges of Indiana and Chairman of the Research
Committee of the Indiana Academy of Science has tended to
delay the formal and definite organization which the Univer-
sity now announces as The Bureau of Science Service .

Object of the Bureau of Science Service

Perhaps the most conclusive argument for it is the fact
stated above, that after a third of a century of science service
the departments which have been giving it independently find
it necessary to combine and organize to function more effici-
ently in meeting the rapidly increasing demand. Without
— 3 —

h

Indiana University Studies

doubt the demand will continue to increase at a very rapid
rate. Industry is awaking to the fact that a most successful
product or method today may be obsolete tomorrow because
science finds something better. The great corporations recog-
nize this fact and therefore maintain their own research lab-
oratories in which thousands of trained scientists are giving
all their time to developing new machines, new methods, new
materials. A 1927 automobile would not run a mile if made
from the best steels available when the first automobile was
constructed. A phonograph dealer could not sell the best
phonograph made ten years ago. The reader would not buy a
car painted with the best paint available five years ago. The
facts are that while demanding and profiting by the fruits of
science, we have become so accustomed to change, develop-
ment, progress, discoveries, that we do not realize the immen-
sity, the grandeur, the significance of it all, and we fail utterly
to appreciate the fact that all of it is the direct result of scien-
tific study and research. There is not a middle-aged person in
Indiana who has not had the opportunity of witnessing more
scientific progress than took place in all the previous history
of the world.

The industries of Indiana are absolutely dependent on their
ability to compete successfully with those of other states and
other countries. To do so they must enlist the aid of trained
research scientists. If the industry cannot afford to maintain
its own corps of investigators with a well-equipped laboratory
and library, its only hope of survival lies in enlisting the aid
of the University in solving its problems. The cost to the
state of maintaining an adequately manned and equipped lab-
oratory to which its citizens may go for science service is neg-
ligible compared to the benefit which would be derived. Does
anyone think that big business would spend more than one
hundred million dollars a year in maintaining private research
laboratories if the benefits were not greater than the cost?

As a matter of fact, the Geology Department of the Uni-
versity in Alunmi News-Letter , Vol. 1, No. 2, published Jan-
uary 15, 1913, shows that the work of that department alone
had at that date saved the state of Indiana more than fifty-
seven million dollars in excess of the cost of maintaining the
department. It is not so easy to estimate the value of the work
of the departments of Chemistry and Physics. Certain it is,

Bureau of Science Service

5

however, that the returns to the state from research work of
these departments have far exceeded the cost of their main-
tenance. While the problems solved have, in the main, been
less pretentious and far-reaching then those credited to Geol-
ogy, they have been far more numerous. In the aggregate
the returns may be compared favorably with those previously
noted from the Geology Department.

Service the Bureau Proposes to Render

The Bureau is an organization of some of the faculty mem-
bers of the departments of Botany, Chemistry, Geology, and
Physics in Indiana University for the purpose of making ex-
pert knowledge in these fields more accessible to the public,
and of encouraging and prosecuting investigations looking
toward the improvement in or development of new manufac-
turing methods and products, and the application of science
to all the affairs of life which might be benefited thereby.
Under the heading “Botany” are listed some of the lines in
which service may be rendered in that field. Under “Chem-
istry,” “Geology,” and “Physics,” several specific cases are
cited to give a concrete idea of the nature of the work that has
been done in Indiana University in those fields in the past and
the general trend it may be expected to take in the future.
Owing to the lack of an organization such as has now been
perfected, up to this time no permanent record has been kept
of the numerous problems that have been solved and investiga-
tions completed. The list on pages 12-20 has been compiled
from memory and consequently is far from complete. For the
same reason some of the dates may be in error by a year or so.
It should be noted that, with the single exception of Geology,
the list includes only those things that have been done in Indi-
ana University by members of the Council of this Bureau —
men who are still members of the faculty and who have or-
ganized to increase their usefulness to the state in the future.

Organization of the Bureau

The work of the Bureau is in charge of a Council consist-
ing of fifteen members, of whom four constitute the Execu-
tive Committee of the Council. The names of the Council with
their academic biographies and science service are listed be-
low :

Arthur L. Foley, Chairman of the Committee
Student, Normal College, two years; Hayward College, one year;
Indiana University, three and one-half years; Chicago University, one
year; Cornell University, one year; University of Berlin, one term.
Graduate, Central Normal College, 1884; Hayward College, 1887; A.B.,
Indiana University, 1890; A.M., 1891; Ph.D., Cornell University, 1897.
Public school teacher, 1884-85, principal, 1885-86, 1887-88. Instructor in
Physics, Indiana University, 1890-91; Assistant Professor, 1891-97; Pro-
fessor and Head of the Department, 1897 to date; University of Denver
Summer School, 1913. Fellow, Cornell University, 1896-97; Research
Professor, Waterman Institute, 1917-24; Chairman of the Research Com-
mittee of the Indiana State Council of Defense during the war; Director
of Research in the Affiliated Colleges of Indiana, 1918 to date; member
of the Acoustic Committee of the National Research Council; Represen-
tative of the American Physical Society on the National Research Coun-
cil since 1925; Director of the United States Radio School at Indiana
University and Consulting Acoustical Engineer during the war; Indiana
University Engineer, 1895-1917; Consulting Acoustic Engineer for radio
and phonograph companies since 1925; Chairman of the Research Com-
mittee of the Indiana Academy of Science, 1922 to date; Associate
Physicist of the Riverbank Acoustic Laboratory, of Geneva, 111., 1922 to
date. Inventor of numerous acoustic and mechanical devices. Editor
of work on the Velocity of Sound in the International Critical Tables.
Author of sixty-six published papers, chiefly descriptive of his re-
searches. “Starred” in American Men of Science. Fellow of the Ameri-
can Association for the Advancement of Science, of the American Physi-
cal Society, and of the Indiana Academy of Science (President, 1909) ;
member of Phi Beta Kappa (President, 1914), Sigma Xi (President,
1904), and of the Scientech Club. Recipient of grants for research work
from the Elizabeth Thompson Science Fund, from the American Acad-
emy of Arts and Sciences, from the American Association for the Ad-
vancement of Science (two grants), from the Riverbank Acoustic Labora-
tory, and from several industrial companies.

EBGAR R. Cumings

A.B., Union College, 1897; Ph.D., Yalt University, 1903. Graduate
student, Cornell University, 1897. Instructor, Assistant Professor, and
Associate Professor, Indiana University, 1898-1909, Professor from 1909>
and Head of the Department of Geology, 1903 to date. Acting Dean of

— 6 —

Bureau of Science Service

7

the Graduate School, 1914-23. Fellow of the Geological Society of Amer-
ica, the Paleontological Society, the American Association for the Ad-
vancement of Science, the American Geographical Society, and of the
Indiana Academy of Science (President, 1925-26) ; charter member of
the Indiana chapter of Sigma Xi (former President) ; charter member
of the Indiana chapter of Phi Beta Kappa (former President). Member
of the field staff of the New York Geological Survey, 1896-97 (Bulletin
34, New York Geological Survey). Field Assistant on the U.S. Geologi-
cal Survey, summer of 1902 (Columbus, Ohio, Folio of the U.S. Geologi-
cal Survey) ; member of the staff of the Indiana Geological Survey, 1919
to date. Geological field work in New York State, 1896-97, 1914, 1923;
Maryland, 1897; Indiana, 1899, 1900, 1901, 1904-8, 1910-13, 1920-22,
1925-26; Kentucky, 1920; Ohio, 1902, 1920-22; Pennsylvania, 1905; Min-
nesota and Wisconsin, 1903, 1911; Wisconsin and Michigan, 1925. Mem-
ber of Governor Ralston’s temporary Highway Commission; former
President of the Indiana Conservation Association. Author of numerous
papers on geological and paleontological subjects, published in scientific
journals and proceedings.

Robert E. Lyons

A.B., Indiana University, 1889; A.M., 1890; Ph.D., Heidelberg, 1894.
Student, Fresenius Laboratories, Wiesbaden; Joergensen’s Institute for
Physiology of Fermentation, Copenhagen; University of Munich and Ber-
lin. Private Assistant, Professor F. Krafft, University of Heidelberg,
1894; Professor and Head of the Department of Chemistry, Indiana Uni-
versity, 1895 to date; Professor of Organic Chemistry, University of Wis-
consin, Summer Session, 1906. Chemist for the State Department of
Geology and Natural Resources, 1895-1918; Chairman of the Chemistry
Division of the State Council of Defense, 1917-19. Member, the Ameri-
can Chemical Society (President of Indiana Section, 1904-5), and the
Deutschen Chemischen Gesellschaft. Fellow, American Association for
the Advancement of Science, Indiana Academy of Science. Charter
member of the Indiana Chapter of Sigma Xi (former President), and
Phi Lambda Upsilon. Author of fifty-five publications on chemical
subjects, including papers, books, and patents. Consultant, or director
of special investigations, for the Guggenheim Exploration Company, Yu-
kon Gold Company, Shasta Dredging Company, Calumet Baking Powder
Company, Crescent Manufacturing Company, Marquette Cement Com-
pany, Carter Construction Company, Congoleum Company, Cantol Wax
Company, Crider Hominy Company, Tomato Products Company, Blue
Label Company, Williams Company, Automatic Fire Sprinkler Company,
Holcomb-Hoke Company, Gentry Remedy Company, Matthews Stone
Company, McMillan Stone Company, Kane Vegetable Glue Company,
Indiana Heating and Lighting Company, Nurre Mirror Plate Company.

David M. Mottier

A.B., Indiana University, 1891; A.M., 1892; Ph.D., University of
Bonn, 1897; University of Leipzig, 1898; Smithsonian Research Student,
Biological Station, Naples, 1898. Instructor in Botany, Indiana Univer-
sity, 1891-93; Associate Professor, 1893-98; Professor and Head of the

8

Indiana University Studies

Department, 1898 to date. Fellow of the Indiana Academy of Science
(President, 1907); life member of the Botanical Society of America;
Fellow of the American Association for the Advancement of Science;
member of the Washington Academy of Science, American Naturalists,
American Fern Society, American Genetic Association; Phi Beta Kappa,
Sigma Xi, and the American Forestry Association. “Starred” in
American Men of Science. Author of two books and fifty technical
scientific papers on botany.

Other members of the Council, names arranged alphabeti-
cally :

Herman T. Briscoe

Student, Indiana University, six years; Harvard University, one
year. A.B., Indiana University, 1917; A.M., 1923; Ph.D., 1924. Austin
Teaching Fellow, Harvard University, 1919=20; Instructor in Chemistry,
Colby College, Waterville, Me., 1920-22; Instructor in Chemistry, Indiana
University, 1922-24; Assistant Professor, 1924-26; Associate Professor,
1926 to date. Five years public school teacher, principal, and superin-
tendent. Military service, May, 19 18 -January, 1919. Research chemist,
Explosives, the Hercules Powder Company, and with the Luckey Lime
and Supply Company, Lime Products. Author of papers on the proper-
ties and manufacture of lime products. Member of Phi Beta Kappa,
Sigma Xi, Alpha Chi Sigma, Phi Lambda Upsilon, American Chemical
Society, and Indiana Academy of Science. Recipient of grant for re-
search work from the Waterman Research Fund.

Oliver W. Brown

B.S., Earlham College, 1895; A.M., Indiana University, 1896. Grad-
uate student, Indiana University, Missouri School of Mines, winter and
spring terms, 1897; Cornell University, 1897-99; University of Wiscon-
sin, summer terms, 1902 and 1903; Honorary Fellow in Engineering,
University of Wisconsin, 1903-4. Demonstrator of Chemistry, Indiana
Dental College, 1896-97; Assistant in Chemistry, Cornell University,
1898-99; Instructor in Chemistry, Indiana University, 1899-1904; Assist-
ant Professor, 1904-5; Instructor in Chemical Engineering, University
of Wisconsin, 1905-6; Associate Professor of Chemistry, Indiana Univer-
sity, 1906-21 ; Professor, 1921 to date. Formerly chemist for the Muncie
Pulp Company and the J. N. Hurty Laboratory; Storage Battery Engin-
eer, the Battery Power Company, the Prest-O-Lite Company, Inc., and
the Brown-Smith Battery Company. General Manager and Vice-Presi-
dent of the Brown-Smith Battery Company for eight years. Consulting
Storage Battery Engineer for the Yale Storage Battery Company, and
formerly for the Picher Lead Company and the Indianapolis Manufac-
turing Company. Charter member of the American Electrochemical
Society and past chairman of the committee on storage batteries; mem-
ber of the commitee on Contact Catalysis of National Research Council.
Member of the American Chemical Society, Indiana Engineering Society,
Indiana Academy of Science, and Sigma Xi (former President). Author
of thirty-two papers and patents covering subjects concerning storage

9

Bureau of Science Service

batteries, electric furnace reduction of metals, physical chemistry,
electrochemistry and catalytic production of azo compounds and amines.
Licensed Professional Engineer, state of Indiana.

John B. Butcher

Student, Normal School, two years; Indiana University, two years.
Graduate student, Indiana University, four years; University of Penn-
sylvania, one year. B.S., Tri-State College, 1900; A.B., Indiana Univer-
sity, 1906; A.M., 1907; Ph.D., 1915. Assistant in Physics, Indiana Uni-
versity, 1906-7; Instructor, 1907-8; Instructor in Physics, University
of Pennsylvania, 1908-9; Assistant Professor, Indiana University, 1909-
15; Associate Professor, 1915-23; Professor, 1923 to date. Fellow, In-
diana Academy of Science. Member of Phi Beta Kappa, Sigma Xi
(President, 1923), and American Physical Society.

Mason E. Hufford

Student, Normal College, two years; Indiana University, two and
one-half years. B.S., Central Normal College, 1904; A.B., Indiana Uni-
versity, 1911; A.M., 1913; Ph.D., 1916. Graduate student, Indiana Uni-
versity, five years; University of Chicago, one-half year; Cavendish Lab-
oratory, Cambridge, one year (1924-25). Assistant, Indiana University,
1911-12 ; Instructor, 1912-17 ; Assistant Physicist, Bureau of Standards,

1917- 18; Acting Assistant Professor of Physics, Swarthmore College,

1918- 19; University of Utah Summer School, 1920; Assistant Professor,
Indiana University, 1919 to date. Member of the American Physical
Society, Indiana Academy of Science, Sigma Xi (President, 1926), and
Phi Beta Kappa.

William N. Logan

A.B., A.M., Kansas University, 1896. Fellow in Geology, Chicago
University, 1898-1900; Ph.D., 1900. Principal, Scottsville Schools and
Beloit High School, Kan., 1891-93; Superintendent of Public Schools,
Pleasanton, Kan., 1896-98. Member of the Kansas Geological Survey,
1895-96, 1899-1900. Member of Bad Lands Expedition in South Dakota
for Field Museum, 1897. Member of Wyoming Scientific Expedition and
collector for Kansas University Museum, 1898. Chapin Professor of
Geology and Mineralogy, St. Lawrence T University, 1900-3. Field Geolo-
gist in New England and on New York Geological Survey, 1902-3. Pro-
fessor of Geology and Mining Engineering, Mississippi Agricultural and
Mechanical College, 1903-16. Geologist for Experiment Station and on
State Survey from 1904. Dean of School of Science, 1912-16. Associate
Professor of Economic Geology, Indiana University, 1916-19; Professor
of Economic Geology and State 'Geologist, 1919 to date. Head of the
Division of Geology of the Indiana Conservation Department. Life
member and Fellow of the American Association for the Advancement
of Science; Fellow of the Geological Society of America, the Royal So-
ciety of Arts, and the Indiana Academy of Science. Former member of
Kansas and Mississippi Academies; Member of Sigma Xi (past Presi-
dent) , Phi Beta Kappa. Examiner of mineral and mining properties for
the Indiana Securities Commission. Member of State Geological Surveys
in Kansas, New York, Mississippi, and Indiana. Investigator of phases
of geology in more than twenty-five states and countries. Author of

10

Indiana University Studies

more than seventy-five publications dealing with phases of the geology
of Colorado, Wyoming, Kansas, Iowa, Mississippi, New York, Indiana,
and other states.

Clyde Arnett Malott

A.B., Indiana University, 1913; A.M., 1915; Ph.D., 1919. School
superintendent, 1913-14; Assistant in Department of Geology, Indiana
University, 1914-15; Instructor, Fort Wayne High School, 1915; Tutor,
Department of Geology, Indiana University, 1915-16; Instructor, 1916-
18; Assistant Professor, 1918-21; Associate Professor, 1921-24; Pro-
fessor, 1924 to date. Fellow of Indiana Academy of Science, American
Association for the Advancement of Science, and the Geological Society
of America. Member of Sigma Xi. Member of staff of Oklahoma Geo-
logical Survey, summer of 1916. Member of staff, Division of Geology,
Indiana Department of Conservation, 1919 to date.

Frank C. Mathers

Student, Indiana University, six years; Cornell University, two
years. A.B., Indiana University, 1903; A.M., 1905; Ph.D., Cornell Uni-
versity, 1907. Instructor in Chemistry, Indiana University, 1903-5; As-
sistant Professor, 1907-13; Associate Professor, 1913-23; Professor, 1923
to date. Scholar, Cornell University, 1905-6; Fellow, 1906-7. Labora-
tory Assistant, Oliver Iron Mining Company, Mountain Iron, Minn., sum-
mer of 1903 ; Special Research Chemist, Roessler and Hasslacher Chemi-
cal Company, Perth Amboy, N.J., summer of 1917; Consulting Electro-
chemist on tin refining, American Smelting and Refining Company, Maur-
uer, N.J., 1917-18; Expert Electrochemist, Chemical Warfare Service,
Washington, D.C., summer of 1918; Consulting Chemist on Oxidizing
Silver, Oneida Community Company, Oneida, N.Y., and William Rogers
Company, Niagara Falls, N.Y., 1919 and 1922; Consulting Chemist on
Hydrated Lime, Charles Warner Company, Wilmington, Del., summers of
1925 and 1926. Member of American Chemical Society, American
Electrochemical Society, and Sigma Xi. Author or joint author of
ninety papers, or manuals. Recipient of grants for research from the
American Electrochemical Society and the National Lime Association
(two grants).

Rolla R. Ramsey

Student, Miami University (Scholarship), 1891-92; Indiana Uni-
versity, 1893-95. A.B., Indiana University, 1895; A.M., 1898; Scholar,

Clark University, 1898-99; Cornell University, 1900-1; Ph.D., Cornell
University, 1901; European universities, 1912-13. Science teacher, De-
catur High School, 1895-96; Laboratory Assistant, Indiana University,
1896-97; Professor of Physics, Westminster College, Pa., 1897-98; As-
sistant, Cornell University, 1899; Instructor, Indiana University, 1900;
Instructor, University of Missouri, 1901-3; Assistant Professor, Indiana
University, 1903-5; Associate Professor, 1905-19; Professor, 1919 to
date; Chief Instructor, Indiana University United States Radio School,
1918; Bureau of Standards specialist in Radio-Activity of Waters and
Materials. Fellow, American Physical Society, American Association
for the Advancement of Science, and Indiana Academy of Science. Mem-
ber, Institute of Radio Engineers, Sigma Xi (President, 1917), Phi Beta

Bureau of Science Service

11

Kappa, and Scientech Club. Inventor of Model of the Atom. Author
of Experimental Radio, second edition, revised. Author of fifty-four
scientific papers.

William M. Tucker

Graduate, Indiana State Normal School, 1905; A.B., Indiana Uni-
versity, 1908; A.M., 1909; Ph.D., 1916. Five years of grade teaching,
four years of high school teaching. Head of the Department of Geog-
raphy, Moorhead (Minn.) Normal School, 1913-15; Adjunct Professor,
University of Texas, 1917; Assistant Professor, Ohio State University,
1917-20; Assistant and Associate Professor, Indiana University, 1920 to
date. Fellow, American Association for the Advancement of Science
and of Indiana Academy of Science. Member of Sigma Xi (President,
1925); Indiana State Geological Survey, 1909-11; of special Government
force to investigate pyrite in coal fields of United States. In charge of
work in Ohio coal fields, 1918. State Hydrologist for Indiana Depart-
ment of Conservation, 1920 to date. Member of the Gimbel Expedition
to British Guiana, study of South American fishes, 1910. Expert witness
in case of McDaniel vs. Forrest City Cemetery Company, Forrest City,
Ark., pollution problem, 1926; Farmers vs. C. I. and L. Railway Com-
pany, flood destruction, pending. Author of numerous papers in the
Reports of the Indiana State Geological Survey, Economic Geology,
Proceedings of the Indiana Academy of Science, and Publications of
Fish and Game Division of the Indiana Conservation Department.

James M. Van Hook

Student, Borden Institute, three years; Indiana University, three
and one-half years; Cornell University, four years. Graduate of Borden
Institute, 1894; A.B., Indiana University, 1899; A.M., 1900. Teacher in
public schools, five years; Instructor in Borden Institute, 1894-96, and
1897-98; Assistant Botanist, Cornell University, 1901-2; Assistant in
Plant Pathology in the Extension Department, Cornell, 1902-4; Assistant
Botanist, Ohio Agricultural Experiment Station, 1904-7; Assistant Pro-
fessor of Botany in Indiana University, 1907-21; Associate Professor,
1921-25; Professor, 1925 to date. Fellow of the American Association
for the Advancement of Science and of the Indiana Academy of Science;
member of the American Phytopathological Society, the Crop Protection
Institute, the Botanical Society of America, Phi Beta Kappa, and Sigma
Xi. Author of twenty-six published papers.

Paul Weather wax

A.B., Indiana University, 1914; A.M., 1915; Ph.D., 1918. Instructor
in Botany, Indiana University, 1915-19; Associate Professor of Botany,
University of Georgia, 1919-21; Associate Professor of Botany, Indiana
University, 1921 to date. Fellow in the Waterman Institute for Scien-
tific Research since 1925. Member of Phi Beta Kappa and Sigma Xi.
Fellow in the American Association for the Advancement of Science and
the Indiana Academy of Science. Member of the Botanical Society of
America, American Naturalists, American Genetic Association, and the
Torrey Botanical Club. Author of twenty-five papers on various botani-
cal subjects, and a book on the Indian corn plant.

Past and Future Services of the Bureau

Botany

The botanists of the Bureau of Science Service are pre-
pared to serve the people of Indiana in any of the following
ways :

1. Identification of, and information concerning plants, — particularly
grasses and certain groups of fungi.

2. Histological and microchemical properties of woods, plant fibers,
etc., to meet definite problems.

3. Research in physical, chemical, and histological properties of grains,
as applied to milling and the manufacture of cereal products.

4. Plant breeding for definite results.

5. Problems in the adaptation or acclimation of plants to new environ-
ments for specific purposes.

6. Any problem connected with the growth, improvement, or utiliza-
tion of corn.

7. Brief or extended courses of special individual training for any per-
son of promise doing industrial work with plant materials or pro-
cesses of any kind.

Chemistry

Professor Robert E. Lyons

1905. Modimilk Company, Indianapolis. Production of condensed,
modified cows’ milk for infants.

1906. Fisher Automobile Company, Indianapolis. Production of non-
corrosive anti-freeze radiator solution.

1907. Vitrified Brick and Tile Company. Bloomfield. Composition and
experimental kiln burnings of shale.

1909-11. Williams Brothers Company, Detroit, Mich.; Blue Label Com-
pany, Rochester, N.Y. Effect of sodium benzoate upon digestibility
of canned foods.

1910. Pitman-Myers Company, Indianapolis. Concerning validity of
United States patents on production of aspirin.

1911-15. Guggenheim Exploration Company, New York; Natomas Con-
solidated Company, San Francisco; Yukon Gold Company, New
York; Shasta Dredging Company, San Francisco. Systematic study
of losses in gold dredging in California and Alaska, including
causes and remedies. Recovery of rusty gold and platinum by
amalgamation.

191^-15. Calumet Baking Powder Company, Chicago; Crescent Powder
Company, Seattle. Experimental study of the effect of egg albumen
upon leavening power of baking powder.

1916-18. Gentry Remedy Company, Bloomington. Development of sul-
phur soap.

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Bureau of Science Service

13

1919. W. F. Myers Company, Bedford. Effect of re-setting of diamonds
in stone cutting saws.

1920-22. Congoleum Company, Philadelphia. Oxidation of linseed oil
and acceleration of drying of paint.

1922. Cantol Wax Company, Bloomington. Development of wax prod-
ucts.

1922-23. Association of Indiana Furniture Manufacturers. Investiga-
tion of the validity of patents on vegetable glue.

1924. Interstate Public Service Company. Development of a solvent
for “tar drip.”

1924. Hunter Valley Stone Company, Bloomington. Processes for artifi-
cial coloring of oolitic limestone.

1924- 26. Nurre Mirror Plate Company, Bloomington, (a) Development
of methods of glass decoration, (b) Methods for salvaging silver in
mirror making.

1926-27. Calumet Baking Powder Company, Chicago. Continuation of
egg albumen baking powder investigation.

Professor Oliver W. Brown

1899. Muncie Pulp Company, Muncie. Determination of conditions nec-
essary for successful operation of electrolytic bleaching plant.

1914. Prest-O-Lite Company, Indianapolis. Determination of causes of
and remedies for storage battery deterioration.

1924. Indianapolis Manufacturing Company. Treatment of storage
battery wood separators before drying.

1925. Newport Company, Carrollsville, Wis. Catalytic processes for
the manufacture of amines and azo compounds.

1925- 26. Yale Battery Company, Indianapolis. Battery production
problems.

1926. Diamond Separator Company, Franklin. Method of drying
storage battery separators.

Professor Frank C. Mathers

1917. Batavia Chemical Company, Genessee, N.Y. Lead perchlorate for
electro-plating lead.

1917. Roessler and Hasslacher Chemical Company, Perth Amboy, N.J.
Electro-plating zinc from zinc cyaniding baths.

1917. American Smelting and Refining Company. Improved baths for
electro-refining tin.

1918. Chemical Warfare Service, Washington, D.C. New methods of
making fluorine gas.

1919. Oneida Community Company, Oneida, N.Y. Platinum substitu-
tes in staining and oxidizing silver.

1921. William H. Rogers, Ltd., Niagara Falls, N.Y. Platinum substi-
tutes in staining and oxidizing silver.

1922. National Lime Association, Washington, D.C. Quick setting lime
plaster.

1924. National Lime Association, Washington, D.C. Stabilizing magne-
sium carbonate; hydrated lime ready mixed plaster.

Indiana University Studies

n

1925. Charles Warner Company, Wilmington, Del. Improved lime
from rotary kiln.

1926. Charles Warner Company, Wilmington, Del. Finishing hydrate
from Pennsylvania dolomite.

1926. Roessler and Hasslacher Chemical Company, Perth Amboy, N.J.
Baths for electro-plating tin.

1926. Hoosier Lime Company, Salem. Lime for softening water.

1926. Herzog Lime Company, Faust, Ohio. Tests on hydrated lime as
a finisher.

1927. Shafer Engineering Company, Indianapolis. Refining elastite
for paints.

1927. Western Lime and Cement Company, Milwaukee, Wis. Finishing
hydrates from Wisconsin dolomites.

Associate Professor Herman T. Briscoe

1923. Luckey Lime and Supply Company, Toledo, Ohio. Production and
quality of hydrated lime.

Geology

The accompanying statement of the Division of Geology
of the Conservation Commission indicates some of the more
important specific activities of the Division since its inception
in 1919. It should be understood, however, that the Division
of Geology of the Conservation Commission is the lineal des-
cendant of the old Indiana Geological Survey; and that the
chief of the Division, Professor Logan, State Geologist, is
Professor of Economic Geology in Indiana University, and
all of the scientific staff of the Division, with the exception of
one man, are members of the staff of the Department of Geol-
ogy of Indiana University.

The following additional Ltcts also need to be mentioned.
The Indiana Geological Survey came into existence in 1837.
After two years it ceased operations, but was revived in 1859,
and has been serving the state ever since. The second State
Geologist, Richard Owen, was a member of the Faculty of
Indiana University. W. S. Blatchley, State Geologist from
1894 to 1911, was a graduate of Indiana University. The fol-
lowing are a few of the graduates and of the faculty of the
University who have contributed to the manifold services and
publications of the Survey, often without remuneration : J. W.
Beede, W. S. Blatchley, J. C. Branner, H. N. Coryell, E. R.
Cumings, J. J. Galloway, E. M. Kindle, W. N. Logan, C. A.
Malott, G. C. Mance, J. F. Newsom, Richard Owen, J. R.
Reeves, C. W. Shannon, C. E. Siebenthal, L. C. Snider, anl

Bureau of Science Service

15

W. M. Tucker. Their studies have covered the widest range of
subjects: Coal, Building Stone, Oil and Gas, Clays, Soils,
Iron Ore, Mineral Waters, Roads and Road Metal, Water
Power and Water Sources generally, Kaolin, Mapping of
Geologic Formations, Fossils and Stratigraphy. This list is
by no means exhaustive.

Indiana Division of Geology

The following is a very brief statement, by Professor Wil-
liam N. Logan, of the work of the Division of Geology of the
Conservation Commission since its inception in 1919 :

1919. A survey of the kaolin deposits of Lawrence and adjacent coun-
ties made and topographic map of the region published under the
title Kaolin of Indiana. Prepared “Mineral Resources of Indiana,”
published in Year Book. Made survey and report on the coal under
Wabash River. Made survey of coal waste in Indiana, published in
Year Book.

1920. Survey of the coal fields of Indiana and study of the coals and
associated clays and shales begun. Investigation of oil shales of
Indiana begun. The following reports: The Building Stones of In-
diana, The Cement Materials and Industry in Indiana, Petroleum
and Natural Gas in Indiana, prepared and published.

1921. Made a geological survey of the Clay City quadrangle; continued
the survey of the coal field; at request of Chicago Gas and Fuel
Company made a study of geological and structural features in the
Tipton-Howard gas field and furnished report; outlined structural
conditions in the Glezen and Rogers’ Station areas of Pike County
and prepared structural maps, for the oil industry; established a
laboratory for the investigation of Indiana oil shales in cooperation
with the U.S. Bureau of Mines. Prepared and published the follow-
ing reports: Reports on oil shales of Indiana published in Street,
Mining Engineering , and Oil Shale Review. Prepared report of
Petroleum in Indiana for Petroleum Register. Inspected and
plugged 424 abandoned deep wells. Prepared and published a map
of the coal fields of Indiana. Prepared: “Gold in Indiana,” “Potash
in New Providence Shale,” “Division of Geology,” published in Year
Book, 1921.

1922. Continued the survey of the coal fields; made a survey of the
Brewersville gas area, furnished map and report; surveyed Oatsville
oil field and made structural map; continued servey of oil shale
area, with Mr. Reeves, and work on clay and shales of Indiana; in-
vestigated stripped coal lands with State Forester, made report and
recommendations for reclaiming such lands; made survey of the
Laconia gas field in Harrison County, prepared map and report;
surveyed Oakland City oil pool. Published jointly with members of
the staff, the Handbook of Indiana Geology, 1,120 pages, which dis-
cusses the geography, physiography, hydrology, stratigraphy, eco-

16 Indiana University Studies

nomic geology, and oil shales of Indiana; published “Coals of the
Allegheny Division/’ “Oil Shales in Indiana,” papers published by
the Bureau of Mines; “Natural Gas in Indiana,” Oil and Gas Jour-
nal. Published reports on: “Division of Geology,” “Peat in Indiana,”
and “Section through New Albany Shale,” in Year Book.

1923. Surveyed Oatsville oil field, made structural map; continued coal
survey. Professor Malott investigated Chester formations in Indi-
ana and studied the geology of Perry County and mapped the struc-
tural conditions; Professor Logan and Mr. Reeves prepared papers
on oil shales in Indiana, published by U.S. Bureau of Mines; con-
tinued investigations of clays and shales. Published “Geological
Conditions in the Oil Fields of Southwestern Indiana,” “Petroleum
Conservation,” and “Petroleum in Indiana in 1923.”

1924. Investigated the following geologic problems: investigated and
furnished report on coal along its lines to the Southern Railroad;
investigated limestone deposits along its lines and furnished report
to the Wabash Railroad; supplied information to County Commis-
sioners regarding limestone to be used in Fountain County Court
House; investigated and gave sources of domestic supplies of water
to citizens of Jennings, Carroll, and Miami counties; examined
foundation and building stone to be used in hotel at Clifty State
Park; surveyed and furnished report on Silver Lake as a proposed
Boy Scout camp; examined and made report on molding sand de-
posit in St. Joseph County; supplied information on the mineral
resources of Indiana to the Chamber of Commerce of Indianapolis,
to the Indiana Bell Telephone Company, and to the Public Utilities
Commission; tested and reported on fire brick for the Simpson Brick
Company; examined and reported on coal from Turkey Run State
Park; supplied information regarding coal on state lands to Execu-
tive department; and made survey of coal removed from State lands
underlying the Wabash River. Published “Petroleum in Indiana in
1924,” “The Hotmire Oil Field,” “The Conservation of Natural
Gas in Indiana,” “Progress of Archaeological Investigations,” and
other papers. Made survey of the Mt. Carmel fault; continued in-
vestigations of coal, clays, and oil shales.

1925. Investigated a large number of problems, among them the follow-
ing: a microscopic and mineralogical investigation of certain ma-
terials for an Indianapolis ceramic firm to determine the cause of
spotting in white ware; study of properties of slip clays submitted
by a Huntingburg pottery and a comparison with native Indiana
slip clays; determination of amount of oil in a shale from Bartholo-
mew; investigated the influence of stylolites on limestone used in
the manufacture of glass at the request of a Bedford limestone
company; investigated the occurrence of selenite in Washington
County; made abrasive tests on samples of limestone and determined
French coefficient of wear for a Bloomington stone company; ex-
amined and made fractional distillation of samples of oil from Wil-
liamsport, Montmorenci, and Gentryville; furnished information re-
garding the mineral resources of Indiana to the Indianapolis Board
of Trade for their annual report.

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17

Began (with Mr. Esarey) the study and mapping of the Indiana Oolitic
limestone area; continued the investigation of the Mt. Carmel fault.
Mr. Stockdale studied the Borden formations, and Professor Cumings
and Mr. Shrock the Silurian formations. Studied the coals,
the clays, and shales of Indiana. Issued monthly reports on oil and
gas; published “Losses of Coal in Indiana/’ “Petroleum Industry in
Indiana in 1925,” “Progress of Archaeological Work,” “Laws and
Regulations Affecting Oil and Gas Development Regulations in In-
diana.” Made a geological survey of Harrison County.

Professor Clyde A. Malott

1917. Petroleum geologist, staff of F. J. Fohs, consulting geologist,
Tulsa, Okla.

1918 (summer). Petroleum geologist, in behalf of the Empire Gas and
Fuel Company, Bartlesville, Okla. Determined oil and gas possibili-
ties in parts of Greene, Orange, and Crawford counties, Ind.

1919-22 (summers.). Active member of the staff of Division of
Geology, Indiana Department of Conservation. Determined detailed
stratigraphy of upper Mississippian formations of southern Indiana;
collected detailed data on coal formations in parts of Clay, Owen,
Vigo, Sullivan, and Greene counties, Ind.; determined structural
geology pertaining to oil and gas possibilities in parts of Pike,
Orange, Martin, Greene, Daviess, Crawford, Washington, and Har-
rison counties, Ind.

1923 (summer). Petroleum geologist, behalf of the Empire Companies,
Bartlesville, Okla. Determined oil and gas possibilities in Perry
County, Ind.

1924. (summer). Petroleum geologist, behalf of the Pure Oil Company,
Columbus, Ohio. Determined oil and gas possibilities of the West
Franklin limestone out-crop area in Gibson and Vanderburg coun-
ties, Ind.

1926 (summer). Field research, Waterman research funds, Indiana
University. Made study of upper coal-bearing strata in southwest-
ern Indiana, and made a topographic and hydrologic survey of the
upper part of Lost River basin in Washington and Orange counties,
Ind.

1916 to present. Numerous investigations, and reports on industrial and
civic geologic work: coal deposits; oil and gas possibilities in special
areas; oolitic limestone in Monroe and Lawrence counties, Ind., es-
timating quantities, determining qualities, and giving estimates of
values with respect to special areas; water supply studies; studies
of artificial lake sites with recommendations; etc.

Associate Professor William M. Tucker

1909-11. Geological Survey of Indiana. Water power of Indiana.

1916-17. Geological Survey of Indiana. Hydrology of Indiana.

1918 . U.S. Government Special Force. Pyrite in coal fields of United
States. In charge of work in Ohio coal fields.

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Indiana University Studies

1920 to date. Indiana Conservation Department Hydrologist.

1922. City of LaPorte. Lake recession.

1923. South Bend. Expert counsel on city water surveys.

1922-25. Indiana Fish and Game Division. Physiographic survey of
thirty-seven Indiana lakes.

Physics

Professor Arthur L. Foley

1895-1917. Installed the first Indiana University electric plant.
Designed the heating and electric systems in most of the University
buildings. Installed the tunnels and stokers. Architect of power
house, University pumping station and reservoir, building for print-
ing-plant, Maxwell Hall addition, Well House, and part of Student
Building. Planned the Student Building grading and walks and the
University Waterworks, together with the water aerating system
and the apparatus for exhibiting the water level in a distant reser-
voir. Devised the method of acoustic correction applied in the Stu-
dent Building. Superintended the construction of nine of the
University buildings. Among the engineering services rendered out-
side the University during this interval may be mentioned the tests
of the municipal electric systems of Bloomington, Vincennes, and
Union City; tests of the heating systems of numerous buildings such
as the Masonic building at Indianapolis; the acoustic correction of
several churches, school buildings, and hospitals; gas and gas meter
testing for the city of Bloomington.

1907. T.H.I. and E. Ry. Co. Experimental study of air velocities, and
pressures at various points about a traction car in motion, and the
question of danger to one standing near a car moving at different
speeds. Expert witness.

1917. Study and investigation of the problem of locating submarines
by reflected sound waves.

1922. Pennsylvania Railway Company. Study of efficiency of locomo-
tive whistle, bell, and headlight under various operating and weather
conditions. Expert witness.

1923. People’s Telephone Company, Terre Haute. Effect of high vol-
tage lines on telephone operation. Expert witness.

1925. T. H. I. and E. Ry. Co. Effect of the proximity of, or crossing
over of, high voltage lines on the present and future operation and
development of electric railways. Expert witness. Constant level fuel
tanks, Sneath Glass Company, of Portland. Resistance and other
properties of copper alloys, Kokomo and Indianapolis capitalists;
photographs of sound waves in auditoriums, also study of power
required to drive spoked and disk wheels, for the Riverbank Labora-
tory, Geneva, 111.; sound wave photographs for lantern slide manu-
facturers and textbook authors.

1926. Transparency of glass for ultra-violet light, for a tuberculosis
hospital architect, also for a poultry-breeder. Study of radio horns
and designing of Purotone horn speaker, Showers Brothers Com-

■ Bureau of Science Service

19

■pany, of Bloomington. Study of phonograph horns, tone arms,' and
reproducers, and designing Isosonic horn, Starr. Piano Company,
Richmond, Ind.

Professor Rolla R. Ramsey

■191 If, Test for radio-activity of water of Young's Well, Brown County,

■ Ind.

1917. Central Stone Mill, Bloomington. Test of wattmeters.

1924. Test of samples of ore from Seattle, Wash.

1925. J. R. O’Brien, Lockport, M.Y. Test of sample of water for radio-
activity.

1926. Radium Products Company, Chicago. Test on “radium vitalizer.”
1926. DeForest Grant, New York City. Test of radium and thorium

water for internal use.

Professor John B. Butcher

The nature of explosions in gases. Device for observing strain in glass.
Improved artificial gas-burner for- use in laboratories. Origin ' of
the excess of nitrogen in pockets in coal mines. ■ Thin ^asbestos sheet
as a covering for hot air pipes.

Assistant Professor Mason E. Hufford

1917-13 . United States Military Department, Bureau of Standards. De-
tection and measurement of ground waves produced by the firing
of large guns.

Conditions under which Service is Offered

The Science Service Bureau has been organized primarily
for the citizens of Indiana and for such will function without
fees in giving information and advice when it can be done
without additional work and investigation on the part of the
one giving it. But on account of the varied character and
range of researches, no definite statement can be made that
will cover all cases of this kind. The conditions and terms
under which investigations will be undertaken must be deter-
mined in each individual instance.

The attention of manufacturers, business corporations, and
men of means generally is called to the fact that the Univer-
sity has considerable equipment in the way of libraries and
laboratories with trained scientists in charge. Under the
direction of these men many research problems might be
solved at much smaller expense than they could be solved in
any other manner, —by providing the "funds for research

20

Indiana University Studies

fellowships in the University.* The benefits to be derived
from such fellowships would not accrue to the donors only.
Research fellowships would enable worthy but needy students
to continue their University work and fit themselves for in-
dependent research positions later on. Where else may the
research workers of the future be trained ? Their training is
is a very important phase of the work of the University, and
the persons who provide fellowships to aid the University in
giving such training are really public benefactors. Again
quoting from the address of Herbert Hoover :

Science stands for far greater things than purely material benefits.
Research, development, and engagement in science is an engagement in
the elaboration of truth, the discovery of truth. It is a process of im-
provement in the veracity of man and precision of thought, and those
indeed are spiritual benefits, for from the truth, the development and
science of truth in our people, must come an appreciation of those things
that lie in the realms of the imponderable and that lie out of the range
of the material in life.

Since the members of the Council of this Bureau of Science
Service are regular members of the faculty of the University,
and as such are required to carry, and have been required to
carry in the past, the same teaching load as do members of the
faculty who are not members of the Bureau, whatever service
they render or investigations they undertake must be done
outside their regular teaching hours.

Communications with reference to the work of the Bureau
should be addressed

Bureau of Science Service,

Indiana University,

Bloomington, Ind.

♦Special Fellowships in Chemistry supported by industrial corporations: (1) The Gras-
selli Chemical Co. (Cleveland, Ohio). Two Graduate Fellowships for each of the past
six years. (2) The National Lime Association, of Washington, D.C. One Graduate Fel-
lowship for four years.

Science Service in Other Fields

The present organization of the Bureau of Science Service
includes only those fields in which service has been most fre-
quently called for in the past. Other fields will be added if
the demand for service in them warrants their inclusion- Cor-
respondence from those having questions or problems in such
fields will be turned over to the person best qualified to give
the service desired.

Attention is called particularly to the expert service which
the University can render in connection with fisheries, stream
pollution, and water supplies.

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