The Albany Law Journal.

ALBANY, SEPTEMBER 27, 1873.

Lex non

of Statute Law," i. e., "Lex Scripta" and Scripta," the Hebrew "Tora she Bicsao" and "Tora She Bal Peh."3 The entire Roman Civil Law is of the character lex non scripta, so in the French" Droit Common," the German, "Gewein Recht," and of

HISTORIC LAW.

There is an existing tradition that the Creator commanded Adam to see that justice be administered. Abendanas Discourses, etc., London, 1706.

We can deprive this idea of the oriental drapery of language and assume it to express that Law is coeval with man.

1. The "Science of Law" in its widest signification, in my opinion, rests on the appreciation of uniform results from mere thoughts upon the conduct of an aggregation of individuals or of an individual person in the political organization called a Government. In the study of this Science we find a basis in theoretical causes only producing at one time and within certain territorial limits, a rule, which simply by changed reasoning or mere will at another period, or, at the same time, but in different territory, may be totally reversed. Take, for instance, the fact of the killing of a human being, its definition as an offense and the punishment thereof, or the status of a person under a given age, or a female in a condition of matrimony. In no other philosophical or speculative science will the results of a given cause be less certain. All the exact sciences on the contrary take their initiatory point from facts, demonstrate their unvarying like effect and follow them in facts to their ultimate conclusion. The study of our science can properly be considered only as part of the study of the continuity of human thought.

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2. The most exact, absolute and abstract meaning of the word "Law" simply represents a rule operative in the Present, but conventionally it is also applied to designate rules of the Past. In this respect other languages possess a richer vocabulary. The terms "Lex," "Loi," "Gesetzkunde" are not convertible with "Jus," Droit," ," "Rechts Wissenschaft." "Jus est ars aequi et boni" says Ulpian.' We have adopted into our language the word "jurisprudence" and allow its general sense to represent also the science of Legislation, but its meaning in Latin is somewhat different. "Jurisprudentia est divinarum at que humaniarum rerum notitia justi atque injusti scientia." The ordinary meaning of the words "Common Law," "Equity" "Civil Law" indicates only some subdivision of local jurisprudence, though text writers like Blackstone have treated them as if they were of different subjects or different systems. The proper division, however, is into "Statute Law" and "General Rules not passed into, but having equal authority

1. Ulpian L. 1. See Muhlenbruch's Studium der Pandecten. Vol. 1, p. 3, n. 5.

2. Cicero de offi. I 43.

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It is a misnomer to call that rule "Law" which in the same jurisdiction and at the same time is revoked or modified by another rule or law. In England courts originally instituted for general purposes would not or could not assume jurisdiction of the whole subjectmatter, and by this arbitrary division created branches of study not recognized in other countries for in no other country than England, its dependencies and the United States, is a professional man considered entitled to distinction from merely being either a good Common-Law or Equity Lawyer. In all other countries the Lawyer may exceptionally arrive at fame as an orator or advocate, but among the learned he is esteemed only for erudition in the codes and Corpus Juris as a complete system. "Omnium Rerum magnarum atque artium scientiam." It is commonly believed that our rules of "Estates " in land originate with the Common Law of England. I think that “Wilkins' Leges Anglo Saxonicæ," the great authority of the English Laws before the Conquest give but little light on this subject. Littleton may be accepted as the authority. Mr. Humphreys, in his "Observations on the actual state of the English laws of real property, etc., London, 1872," title ix, part 1, “of the sources of the laws of real property," does not name either Littleton or Fleta or Bracton. Nevertheless the origin of fiefs was in France. The Normans, the conquerors, brought their existing laws with them, supplanted the Saxon, and being the dominant power preserved what was the "Coutume de Bretagne" and "Coutume Normande" into incorporation into the English Jurisprudence, and therefore Mr. Dupin refers to Houard's "Ancient Laws of France, preserved by the English Common Law (Coutumes Anglaises), collected by Littleton," and to his "Coutumes AngloNormandes" as instructive, and to be a part of the library of a French Jurisconsulte. Authorities much more accessible to the general reader are the sacred volumes of the Pentateuch, which gives us history of

3. Q. As to the true meaning of "pipп " by R' Jehuda Hallevi, translated by Leeser "the Engraven Law, "Ley Esculpida" in Portuguese. Also of "Suntra," Hindoo expression to designate the "Eternal Traditional Law."

4. The "actio prohibitoria" was a settled civil law remedy where a party ex debito justitia was entitled to an injunction to restrain an infringement of rights to real property. There was such an equitable action in the Chancery. 1 Spen. Eq. Jur., etc., pp. 668-671.

5. See Townshend's Ram on Legal Judgments, p. 60, a nd Broom's Legal Maxims.Legem respectat Equitas" and "Equitas Sequitur Legem."

6. Dupin's Lettres sur L'Etude d' avocat, vol. 1, p. 20. "The Common Law includes those principles, usages and rules of action applicable to the government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the Legislature." 1 Kent's Com. 472.

Townshend's Ram Legal Judg. p. 37.

7. Dupin's Lettres, etc., vol. 2, p. 191, Nos. 737, 738.

early conveyances of "estates" in land. The first is an instance in which for a money consideration by livery of seizin, "The field and the cave that is therein," was conveyed for a possession. The next describes the gift of an allodial tenure acquired by pedis possessio only: "To him I give the land that he has trodden upon and to his children." The third is of a formal conveyance in fee of an estate of inherittance, absolute by deed, signed, sealed "according to law and custom," witnessed and delivered by a party in possession to the party next entitled, "for the right of redemption is thine and the inheritance is thine." 1910 Blackstone" quotes this last citation as a very remarkable instance not only of the attestation by "seal," but also of the other usual formalities attending a Jewish purchase, but he is silent as to the quality of the estate conveyed and to legal requirements of the mode of conveyance, "according to law and custom," which comprised the signing, sealing, witnessing, acknowledging and delivery of a conveyance as required by the statutes of almost all the States of the Union. I also doubt whether the denomination of a deed as Syngrapha is exact. A precedent of a "Zvxypaph" in totedem verbis is to be found in the oration of Demosthenes against Lacritos. It is a strict contract, acknowledging an indebtedness of three thousand drachmas Athenian silver, for which it pledges cargo outward bound of a twenty-oared galley, out of the proceeds of which cargo the loan is to be repaid. It stipulates the right of the lenders, in case of default of payment as provided for, to take possession of and sell the merchandise. It provides for contingencies of jettison (jactura) and of hostile detention, and for reshipment to Athens in case the cargo cannot reach the port of destination. It gives a lien for any deficiency on the joint and separate property of the debtor's "de omnibus eorum bonis tam terrestribus quam nauticis." It refers to a prior interest, bearing acknowledgment of the debt of the parties, and concludes with the formula: "In his rebus

text.) In Demosthenes' oration against Dionysidorius, reference is made to a syngraph, but neither its form or contents is set out at length.13 I have arrived at the belief that the technical name of a conveyance of real estate in the Greek language was προσβολη. It was the unquestioned word used in the Talmudic law for such conveyance, "Prus Bus," derived from the above Greek word. It was a written instrument, which had to be executed and acknowledged by the grantor before a competent judicial authority.15 On the other hand Gneist asserts that the term vyvgaon denotes a technical contract by consent of all parties.16 Mr. Washburn, in his treatise on real property, gives countenance to a belief that mortgages were invented by the Jews," while Blackstone speaks of them as "dead pledges." I have it, however, from excellent authority that our present form of mortgage (excepting the power of sale required by our statute) is a true translation of the "pactum fiducia" of the Roman law prior to the Pandects, and that their legal force and effect were the same." 18 Much speculation has been indulged in as to the origin and history of drafts. English commentators" refer to them as originating in the fourteenth century, among the Jews. A French author believes them to be identical with the Lettres de Foires and Litteræ Nundinales. 20 Another thinks he can trace them to the sixth century.21 The earliest mention of drafts which I have been able to trace (though in one of the orations of Demosthenes he speaks of a verbal and written order on a banker for the payment of a deposit), occurs, however, in the history written by Prof. Jur., Dr. Hubschke, of Breslau, of the claim of Cicero against Dolabella." According to this account,

13. It has very recently been again doubted, whether these speeches can be ascribed to Demosthenes, but the fact of their delivery by some other party is conceded. Revue de deux Mondes, June 15, 1873, in notes to pp. 934, 944. 14. Auerbach's j. Obligationen Recht, p. 191. 15. Mishna, B1, Pea, ch. 3, v. 6:

, רבי עקיבא אומר קרקע כל שהוא חייב בפאה ובבכורים

בכסף ובשטר ובחזקה."

three witnesses (Maprupes) and is proved by Archenomides, son of Archadamant, the Anagrysian, to have been delivered to him by all the parties thereto, and to have been acknowledged by them to him as their syngrapt. (I have, for convenience, transcribed from the Latin translation, instead of using the Greek

8. Genesis, ch. 23.

9. Deut. ch. 1, v. 36. In contradistinction to a grant to the Tribes.

10. Jeremiah, ch. 32, v. 9-12. Not noticed in an elaborate essay on seals," 1 Vol. Am. Law Rev. (Boston) pp. 638 and seq. 11. Blacks. Com. Part 2, p. 305, in note. 11a. Ib. p. 296.

12. Demosthenes contra Lacritos, Or. 35. The oration against Zenotherius, Phormion and Dionysidorius are in pari materia in suits on contracts. The oration v. Conon in a civil action to recover damages for an assault and battery. For Callicles is a defense to an action for stopping a water-course. In the exhaustive opinion of PECKHAM, J., in Pixley v. Clark, 35 N. Y. 520, the maxim of aqua curret et debet currere is fully maintained but this oration is not referred to.

Here the "Prusbal" is distinguished from the authentic contract, Shtar, and from mere possession, Chasakah. 16. Gneist. Formelle Vertracge, p. 476.

17. Washburn on Real Property, vol. 1, p. 477 (on the authority of Powell). Unquestionably that pledges of land in possession was known to the Talmud, but though partaking of the hypothecary character were not our mort

gages.

18. J. E. Goudsmit, Professor of Roman and Civil Law at the University of Leiden, author of "Theorie des Pandectes, etc.” 19. Blacks. Com. vol. 2, p. 467.

20. Fremery Droit Commercial, p. 99; and see Pohl's Handelsrecht, vol. 2, introduction to Wechselrecht.

21. Guyot's Repertoire, etc., Francais. "Lettres de Change." We must, however, distinguish between the contract of exchange, the bill itself, and the law concerning liabilities jus cambialis which is surely of comparatively modern origin. In the United States the difference between the "contract of exchange" and its fruit, "the bill of exchange," is not noticed. The " promissory contract (Shtar chob.) is well known to the Rabbinical Law. The word "Rabbi" is analogous to the Greek Bpâ Bevg Arbitrator, Distributor of Prizes.

22. Savigny's Zeitschrift fin Historische Rechtswissenschaft, vol. 14, p. 42, and letters of Cicero ad Atticum 15, 16, etc., cited by Hubschke.

generally, the public has no ownership of the soil, no right of possession or occupation. It has a mere right of passage. While, then, it may be true that ownership of property may sometimes bear upon the question whether the uses of the property are public, it is not the test."

It was also strenuously urged against the constitutionality of the law, that it attempted to authorize the county to assist the railroad by a donation, and that taxation for the purpose of making a donation was invalid, even though the ultimate uses were public. But the court held that it made no difference in what way the aid was extended-"that there is no substantial difference in principle between aid given to a railroad company by subscription to its stock and aid given by donations of money or land."

The court therefore held that the act was a constitutional exercise of legislative power. From this decision the Chief Justice, Mr. Justice Miller and Mr. Justice Davis dissented.

Another important case decided at the same term was that of The Chicago, Burlington & Quincy Railroad Company v. The County of Otoe. The question in that case was whether the act of the legislature of Nebraska, authorizing the county of Otoe to issue bonds in aid of a railroad outside of the State, was constitutional. The preamble of the act recited that the qualified voters of Otoe county had authorized the commissioners of the county to issue its bonds to any railroad in Fremont county, Iowa, that would secure to Nebraska City an eastern railroad connection, and it was therefore enacted that the commissioners should be authorized to issue a certain amount of the county bonds to the Burlington and Missouri Railroad or to any other railroad company that would secure to Nebraska City a direct eastern railway connection, as a donation to the company, on such terms and conditions as might be imposed by said commissioners. Under this act the bonds, on which suit was brought, were issued to the Burlington and Missouri Railroad Company and by it negotiated to the plaintiffs. There was no direct or express prohibition in the State constitution against such legislation, but there were provisions that private property should not be taken for public use without compensation, and that the "credit of the State should never be given to or bound in aid of any individual association or corporation," and it was urged that these provisions rendered the act void. But the court held, Mr. Justice Strong delivering the opinion - for reasons similar to those stated in the prior case—that the legislature had the constitutional power to authorize municipal aid to railroads and that this power was not restricted by either of the constitutional provisions above stated. The court also discussed, somewhat more fully than in the first case, the power of the legislature to authorize a municipal donation in aid of railroads and, as in that case, decided that it had the power.

it authorized aid to a railroad beyond the limits of the county and outside the State. But the court said: "It was for the legislature to determine whether the object to be aided was one in which the people of the State had an interest."

Another important point which arose in the case, and upon which the circuit court divided, was "whether the county commissioners of Otoe county could, under the act of February 15, 1869, lawfully issue the bonds from which the coupons in suit were detached, without the proposition to vote the bonds for the pupose indicated, and also a tax to pay the same being or having been submitted to a vote of the people of the county, as provided by the act of the territorial legislature of Nebraska, passed January, 1861. The court said: "This question we answer in the affirmative. If the legislature had power to authorize the county officers to extend aid in behalf of the county or State, to a railroad company, as we have seen it had, very plainly it could prescribe the mode in which such aid might be extended, as well as the terms and conditions of the extension, and it needed no assistance from a popular vote by the municipality. Such a vote could not have enlarged legislative power. But the act of 1869 was an unconditional bestowal of authority upon the county commissioners to issue the bonds to

the railroad company. It required no precedent action of the voters of the county. It assumed that their consent had been obtained. That prior to 1869, the sanction of approval by a local popular vote, had been required for municipal aid to railroad companies, or improvement companies, is quite immaterial. The requisition was but the act of an annual legislature, which any subsequent legislature could abrogate or annul." See, however, the decision of the Court of Appeals of New York in People v. Bacheller, ante, 120.

That the legislature has the constitutional right to authorize municipal corporations to subscribe for the stock of a railroad, and to issue bonds to aid in the construction thereof, was also held by the same court in Saint Joseph Township v. Rogers, 7 A. L. J. 362.

There are also several decisions of the same term in relation to defenses to such bonds in the hands of bona fide holders for value, notice of which we must defer to next week.

CURRENT TOPICS.