the heart of blackstone

7/28/2019 The Heart of Blackstone

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Cornell University LibraryKF 394.P32The heart of Blackstone; or, Principles o

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The original of tliis bool< is intine Cornell University Library.

There are no known copyright restrictions inthe United States on the use of the text.

http://www.archive.org/details/cu31924018825699


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The Heart of BlackstoneOR

Principles of the Common Law *

NANETTE BrPAUL, LL.B.Lectnrer on Law in Washington X^Wttt* WasMnSton, D. C.

Introductioa byHON. THOMAS H. ANDERSON

Jnitice o< the Snireme Court oi tha Diitrict of Calnmbii

THE ABINGDON PRESSNEW YORK CINCINNATI


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Copyrieht, 1915, byNANETTE B. PAUL

First Edition Printed January, 1015Reprinted March, 1915


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TO ELLEN SPENCER MUSSEY, LL.M.,FOUNDER OF THE WASHINGTON COL-LEGE OF LAW, WASHINGTON, D. C,IS DEDICATED THIS ATTEMPT BYONE OF HER FORMER PUPILS TOGIVE TO MEN AND WOMEN UNABLETO ATTEND COLLEGE AN OPPORTU-NITY TO LEARN SOMETHING OFTHE PRINCIPLES OF LAW. : : : :


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TABLE OF CONTENTS PAGEPreface 9Introdttction 13Chafteb I The Sotjhce op the Common Law 15Alfred the Great 18William of Normandy 19Pandects of Justinian 19Introduction in Oxford 20Opposition of Parliament 21Common Pleas at Westminster 23Common Law Study in Oxford 24Sir William Blackstone 24

Chapter II The General PBiNcrPLES op Law 26Definition of Law 26Three Forms of Government 27The Constitution 28The Sovereignty 30Municipal Law 31Interpretation of Law 31Penal Statutes 34Remedial Statutes 34Ex post facto Laws 35

Chapter III The Absolute Rights op Persons 37Definition of Absolute Rights 37Natural Liberty 38Political Liberty 39Personal Security 41Personal Liberty 43Writ of Habeas Corpus 44Right of Private Property , . 45Religious Liberty 46Freedom of Speech and of the Press 47

Chapter IV Relative Rights in Respect to PublicRelations 49Public Magistrates 49Origin and Meaning of Parliament 50Magna Charta 51Federal Constitution 62House of Representatives 53The Senate 55The President of the United States 58The Cabinet Officers 68The Supreme Court 59Officers of the Courts 60Responsibility of All Pubhc Officers 64


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CONTENTSPAOEChapter V ^Rblativb Rights in Respect to PrivateRelations 65Master and Servant 65

Introduction of Slavery 66Indenture 66Liability of Servant 67Responsibility of Master 68HusDand and Wife 69Dissolution of Marriage 71Parent and Child 73Duties of Father 74Illegitimate Children 75Guardian and Ward 75

Chapter VI ^Artificial Persons or Corpoeations. ... 78Origin of Corporations 78Act of Incorporation 79Public Corporations 81Private Corporations 82OfBcers of Private Corporations 82Stock Companies 83Eleemosynary Corporations 84Quasi-Public Corporations 84Joint-Stock Companies 86Partnerships 87

Chapter VIIThe Rights op Things 89Definition of Property 89Origin of Private Property 92Lost Property 93Ownership of Wild Animals 94Things Corporeal -94Things Incorporeal 94Definition of Real Property 96Definition of Personal Property 98

Chapter VIII Property in Things Real or RealEstate 99Kinds of Land 99Ownership of Water 100Emblements 101How Land is Acquired 102Eminent Domain 102Land of the United States 103Warranty Deeds 104Torrens Title System 105Title by Accretion 106Will or Testament 106DisabiUties of Married Women 109Fee Simple 109


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CONTENTSPAGE

Life Estates 110Homestead Rights IllEstates for Years IllMortgage IllEquity of Redemption 112Chapter IX Phopeett in Things Personal 113

Definition of Personal Property 113Chattels Real 114Chattels Personal lir,Qualified Possession 115ftoperty in Animals 115Property in Action. . . ; 118Property by Accession 120Trade-Marks 121Copyrights 122Patents 123Forfeiture and Treason 123Heriots, Mortuaries, Heirlooms 124Wife's Paraphernalia 125Contract, Express, and Implied 126Sale or Exchange 127Baihnent 129Bin of Exchange, Notes, Checks 131Bankruptcy 133WiU or Testament 134

Chapter X Private Wrongs or Civil Injuries 135Remedy for Private Wrongs 136Self-defense 136Recaption, or Reprisal 137Nuisance 137Distress for Rent 139Wrecks, Estrays, Deodands 140Accord and Arbitration 140Retainer and Remitter / 141Personal Actions 143Threat and Menace 144Assault and Battery 144Wounding, Mayhem 145Injuries to Personal Property 152In Possession 152In Action 155Trespass 155Waste 156Nuisance 156Neghgence 157

Chapter XI Public Wrongs or Crimes 158Definition of Crime 159


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8 CONTENTSPAGE

Punishment 161Persons Capable of Committing Crime 164Principal and Accessory 166Ofienses Against Religion and Morals 167Offenses Against the Law of Nations 170Offenses Against the Government, Treason 171Offenses Against Public Justice, Bribery, Perjury 173Offenses Against Public Peace, Riots, Routs 176Offenses Against Public Health, Nuisance 177Offenses Against Person, Murder, Mayhem 178Offenses Against Habitation, Arson, Burglary 179Property, Larceny, Robbery, Forgery 182

Chapter XII Coubts and Their Process 186Court of Record 187Not of Record 187Appellate Court 188Elements of Court 188Common Law Courts 191Probate Courts 193Admiralty Courts 193Courts Martial 194Military Courts 195Provisional Courts 195Equity Courts 196The Process, Pleadings 198

f Trial by Witnesses 200Trial by Oath 201Trial by Ordeal, Fire, Water, Corsned 202Trial by Battle 203Trial by Record 204Trial by Jury 204Judgment 210Execution 211

Chapter XIIIInternational Law 212Development of Law between Nations 212Subjects of International Law, Sovereign States, etc. . . 214Soittces of International Law, Treaties, Prize Courts. . . 218Acquiring Territory, Occupation, Accretion, Cession,

Conquest 223Right over Land, Spheres of Influence, Protectorates. 225Right over Water, Innocent Passage, Right to Fish. . . 227War, Passports and Safe-Conducts, Contraband of War. 229Diplomacy, Ambassadors, Envoys Extraordinary, Min-isters 233

Chapter XIV Common Law Maxub 237


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PEEFACEThe design and object of the laws Is to ascertain what

is just, honorable, and expedient; and when that is dis-covered, it is proclaimed as a general ordinance, equaland impartial to all. This is the origin of law, which, forvarious reasons, all are under an obligation to obey: butespecially because all law is the invention and gift ofHeaven, the sentiment of wise men, the correction of everyoffense, and the general compact of the state: to live inconformity with which is the duty of every individualin society. Demosthenes.HisTOET informs us that the boys of ancient

India were required to learn the civil andcriminal laws of their country that they mightbe more able to understand and apply themwhen they became men. The laws of Athenswere inscribed on wooden tablets set up in thepublic square, where all citizens could readthem. The laws of ancient Rome were con-densed into a simple form known as the TwelveTables, which the small boys were obliged tocommit to memory, that the significance of theirprinciples might be indelibly impressed uponmind and heart. The "Great Law" enactedby the first General Assembly of Pennsylvania,in the year 1682, contained a provision requir-ing it to be taught in the schools of thatprovince and its territories. Why these wiseexamples have not been followed in our modem

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10 PREFACEstates is a question well deserving the thought-ful consideration of our statesmen and thegeneral public alike.We are, no doubt, all familiar with one ofthe three thousand maxims upon which thesystem of our law and order is based, "Igno-rance of the law excuses no man" ; but how manyboys in our high schools, young men in ourcolleges, men of middle age, and those who havepassed the threescore years and ten allotted toman, can repeat another? How many men exer-cising the symbol of free-born citizens on elec-tion day can enumerate the five great, absoluterights of every American? How many men wellversed in the arts, sciences, business and socialaffairs of life can intelligently explain the differ-ences in the three primary forms of governmentunder some one of which all mankind, who claimto be civilized, must live ? May there not be someconnection between this unfortunate lack oflegal knowledge and the illegal manipulation ofthe various departments of our municipal gov-ernments? May we not perchance find here thecause of so much that is dishonorable in highplaces ? And may not it be the excuse for thatindifference to and almost contempt for lawwhich is fast becoming characteristic of ourpeople?

Surely it is not too much to ask of every manbefore permitting him to cast a ballot, that he


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PREFACE 11know something of the law creating and regu-lating the duties of the officer about to be elected.Should not every man called to serve on a juryhave some comprehension of the law which theaccused has violated and which he has sworn touphold ? And why should not every woman con-sider a general knowledge of these principlesan essential part of her education?The thousands of immigrants thronging ourcities, utterly ignorant of the basic principlesand aims of our civic life, should be compelledto learn something of the practical working ofthe municipal governments before they areallowed to become citizens of the United States,and factors for good or bad in the progress ofour civilization. Every department of scienceand art has been put in popular form for thebenefit of untrained minds except the law, theonly science which intimately concerns everyindividual both in his public and private life.If the principles of our common law wereput in simple, living language, shorn of all pon-derous and technical phraseology, we believethey would appeal to the hearts of young andold, men and women. We believe, too, that anew reverence would be aroused for the splendidold maxims, some of which are as old ashumanity itself.

If our free institutions are to endure, if thenew race rising upon this continent is to come


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12 PREFACEinto the glory of the brotherhood of man, thislaw, the bulwark of English and Americanliberty, must be learned by heart, must sinkdeep into the consciousness of every boy andgirl of succeeding generations. That she mayhave contributed something toward this desir-able end by the preparation of this elementarywork is the earnest hope of the author. Shedesires to acknowledge her indebtedness for thematerial used to Lewis's Edition of Black-stone's Commentaries, Eobinson's Elements ofAmerican Jurisprudence, Fiske's Civil Govern-ment in the United States, Woodrow Wilson'sThe State, Lawrence's Principles of Inter-national Law, and the several textbooks on thevarious branches of the law. It is with pleasurethat she expresses her obligation for manyhelpful suggestions to her former legal in-structor, Watson J. Newton, Esquire, who wasa member of the Bar of the District of Columbiafor more than thirty years.With a sense of comradeship with men andwomen realizing their need of a knowledge of

law but unable to supply that need in the usualway, she sends forth this little book. May itsmission be accomplished and that law which isbut "beneficence acting by rule" become morefirmly intrenched in the minds and hearts of allclasses of our people. Nanette B. PAxm.Washington, D. C.


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INTRODUCTIONThe practical value of this book is not con-fined to lawyers and students at law, but the

earnest and intelligent searcher after knowl-edge in other fields, no less than the members ofthe legal and other learned professions, cannotfail to derive accurate and profitable instructionfrom its study.The author's rare power of condensation,orderly division of the subjects treated, andtheir logical development, give special value tothis work as a succinct yet comprehensive viewof the leading principles and maxims of thecommon law.While no attempt at exhaustive citation of au-thorities has been made by the learned authorof this convenient and useful manual, it has,what is of highest value, the sanction of thestandard authorities of the law.Lord Bacon, in the preface to his Eules andMaxims, says that he might have made an

ostentation of learning by citing authorities, butthat he abstained from it, "having the exampleof Mr. Littleton and Mr. Fitzherbert, whosewritings are the institutions of the laws of Eng-land, whereof the one forbeareth to vouch au-thority altogether, and the other never recitetha book but when he thinketh the case so weak ofcredit in itself as it needs a surety."Thomas H. Andbeson.

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CHAPTER IThe Source of the Common Law

The common law is grounded upon the general customsof the realm and Includes in it the law of nature, the lawof God, and the principles and maxims of the law; it isfounded upon reason, and is said to be the perfection ofreason acquired by long study, observation, and experience,and refined by learned men in all ages.The world has been dominated by the genius

of two great races for several thousand years,the Semites and Aryans. The former, as nearlyas scholars can discover, had its original homein the desert and barren peninsula of Arabia.From that land, which never aiforded sufficientsustenance for the people born upon it, theSemites wandered into the Mesopotamian valleyand established a vast and powerful empireupon that of the Sumerian and Akkadian, al-ready strong and flourishing. In the course ofcenturies they also conquered the empire ofBabylonia and Assyria, controlled Egypt, andoccupied the numerous small states in AsiaMinor. The Aryans came down from northernAsia and settled in India, Persia, Europe, andthe islands of Great Britain.These races differed temperamentally. The

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16 THE HEART OF BLACKSTONEthe unit, the patriarchal system being theirideal. Their religion was based upon the ideaof one Supreme Being with, public worship.Among the Aryans, the family was the unit,the young man was the hero, and individualrights were recognized. Their religious con-ception was that of many gods rather than One,and their worship was conducted in the privacyof the home.When the Eoman legions landed on the islandof Britain in the early part of the Christian erathey found a tribe of Aryans which had beenthere for an unknown period. While theTeutons, one branch of the Aryan migrationfrom the north, stopped in the forests of Ger-many, another branch called the Celts crossingthe narrow sea, halted on the islands and becameknown as the Britons. These rough tribes werenever conquered entirely by the Romans, strongas the latter were; and as the power of theQueen City of the Tiber declined, her garrisonswere withdrawn slowly from Britain until themiddle of the fifth century, when the island wascompletely abandoned.The Britons were thus left defenseless not

only before the still ruder tribes on the north,the Picts and Scots, but to the mercy of theirbarbarian kindred from over the sea. Angles,Saxons, and Jutes soon came in swarms, killingand enslaving alb Britons unable to escape to


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SOUECE OF THE COMMON LAW 17the north or west. It was a complete conqueston the part of the invading tribes, althoughcenturies of the most obstinate and cruel war-fare were required to accomplish it. The southpart of the island took its name frond the mostnumerous of the invaders, the Angles, and hassince been called England.

These German tribes had never come underthe influence of the Roman language, law, orreligion. The traditions, customs, and idolatrousworship of their Aryan ancestors were un-tainted. In their untutored hearts, however,were held a love of personal liberty, an enthu-siasm, and an aspiration to better things charac-teristic of the Aryan race wherever foundqualities which had evolved in earlier ages the

. spiritual philosophy of the Hindu, the artisticdevelopment of the Persian, the matchless pro-duction in art and literature of the Greek, andthe enduring principles of the Roman govern-ment. Little did they realize that in this smallisland they were to work out a great destiny.It is our good fortune to be the beneficiaries ofsome of the results born from their labors andhardships. The Britons had assimilated fewideas of the Romans, and having been so com-pletely subjugated and so nearly destroyed bythe German tribes, the influence of the four-hundred-years' dominion of Rome was almostgone.


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18 THE HEART OF BLACKSTONEAmong the various traditions of these Teu-

tonic tribes were some of the principles whichform the basis of our Common Law. Theseprinciples were expressed in homely maximsor known as habits of the people; the originof many was unknown even in that remote time.These habits or customs became so numerous

and conflicting that Alfred the Great, who issupposed to have lived from 840 to 901, com->piled them into a book for the use of his wholekingdom. This famous Doombook, lost so longthat its very existence was doubted, fortunatelywas found, and now may be seen in both theoriginal Saxon and Early English. It is pre-faced by the Ten Commandments, followed withmany Mosaic precepts, and the significantutterance of Jesus, "Think not that I am cometo destroy, but to fulfill. ' ' He quotes the canonsof the Apostolic Council at Jerusalem, and thecommandment, "As ye would that men shoulddo to you, do ye even also to them"; and adds,"from this one doom a man may rememberthat he judge every one righteously: he needheed no other doombook."

These customs were no doubt more or lessimpaired by successive shocks of invasion andperpetual warfare; yet up to the time of theNorman Conquest they were the law of the landand as such had become endeared to the people.From the sixth to the tenth century most of


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SOUECE OF THE COMMON LAW 19the learning of the English consisted of aknowledge of this law and the decisions renderedby the judges. Under the name of the CommonLaw they were taught in the monasteries, theuniversities, and in the families of the nobility.The clergy were so proficient in its study andpractice that it was said, "There was no clergy-man who was not also a lawyer." In fact thejudges were created out of the sacred order,and, as the inferior offices were also suppliedfrom the lower clergy, the name of clerk hasclung to some of them even to the present time.Li the year 1066, "William of Normandy

succeeded in gaining possession of the throneof England. He brought with him the clergyof the Eoman Church and placed many of theEoman priests in the offices hitherto held bythe English priests or laymen. Most of theprominent English families were deprived oftheir lands which were transferred to William'sNorman followers.

Little of the common law was written, andas it was known largely by tradition, use, andexperience, it was in imminent danger of beinglost to the English. The difficulty of under-standing it with no knowledge of the nativelanguage, made the Normans indifferent to itsefficiency. The sudden revival of the study ofthe pandects of Justinian, supposed to havebeen discovered in the twelfth century, also


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20 THE HEAET OF BLACKSTONE 'tended to lessen their interest in the customsof a conquered people.The old Eoman, or civil law as it is called,was greatly favored by the clergy of theCatholic Church, and because of this regard itwas made the basis of the church or canon law.Its study was introduced into the universitiesof Europe, and the growing nations of thatcontinent incorporated many of its principlesinto their municipal governments.

Theobald, a Norman abbot, was elected tothe See of Canterbury in 1138, and broughtwith him a number of men who had made aspecial study of this Roman law. One of them,Vacarius, was established as an instructor inthe university of Oxford. This was followedby the attempt to impose the Roman law uponthe whole English people in personal as wellas public affairs. The monks and clergyadopted it willingly, and zealously supportedit as against the crude and immature commonlaw. On the other hand the laity, or peoplegenerally, were wedded to the customs of theirforefathers, and having already felt the uncom-fortable effects of many of the innovations oftheir conquerors, persistently refused to acceptthis one at their hands.The resistance to the new law was not based

upon the novelty or the name, but upon thegrave and serious differences in the nature of


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- SOURCE OF THE COMMON LAW 21the principles upon which it was founded. Thesturdy, independent English lords and baronswould not accept the idea expressed in the state-ment: "The Emperor alone is deemed themaker and interpreter of the law" ; or willinglyacquiesce in the doctrine: "The constitution ofthe prince has the force of law, as the peopleplace all their power and authority in hishands." Neither could they bring themselvesto believe, "It is like sacrilege to oppose therescript of the Emperor."

Bitter controversies arose and feeling ranhigh. The nation became divided against itself.Bishops and clergy, most of whom wereforeigners, studied and taught the civil law,while the laity and nobility as zealously laboredto maintain the native English law. Neitherparty would admit the really great merit resid-ing in the claims of the other, therefore a com-promise was impossible. The Parliamentdeclared: "The reahn of England hath neverbeen unto this hour, neither by the consent ofour lord and king, and the lords of parliament,shall it ever be ruled or governed by the civillaw."

Finding it impossible to uproot this deep-seated affection for the common customs, theclergy gradually withdrew from the temporalcourts. The papal authority forbade them toappear as advocates, and they soon ceased to


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22 THE HEAET OF BLACKSTONEact as judges as well, because of their unwilling-ness to take the oath of office, which read: "Todetermine all things according to the law andcustom of this realm."The Eoman or civil law controlled the

spiritual courts, was taught in the universities,and to it the high court of Chancery conformedits proceedings. The clergy was forbidden bythe Pope to study or even read the common lawbecause its decisions were not founded uponthe imperial constitutions. The degree ofabsurdity to which this zeal was carried isshown by the fact that the writers of that timecould not draw a picture of the Virgin withoutmaking her an advocate and defender of theEoman law.The result of the determined effort of the

educated classes to bring the native law intodisfavor caused its teaching to fall wholly intothe hands of those who made a practical useof it in the common law courts. It would nothave held its own against the opposition but forone peculiar incident which occurred at a criticaltime. It had been the custom for the tribunalin which disputes with regard to property weresettled, known as the court of common pleas, tofollow the King's household as he moved fromone part of the kingdom to another. This prac-tice caused great inconvenience, and often realhardship to all who brought cases before it.


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SOURCE OF THE COMMON LAW 23The people finally succeeded in having anarticle incorporated in the great charters ofliberty both of King John and of Henry theThird, to the effect that "the common pleasshould not longer follow the king's court, butbe held in some certain place." Westminsterwas chosen as the place, and the professors ofthe common law who previously had been scat-tered through the kingdom formed a societywhich became famous under the care of Edwardthe First, often called the English Justinian.

Certain houses were purchased between thecity of Westminster and the city of London"for the advantage of ready access to the oneand plenty of provisions in the other." Thesehouses were known as Inns of Court and Innsof Chancery. The word inn had been used todenote the town houses in which the nobility andgentry lived during the social season. Thenames remained when put to the new use.Lincoln's and Gray's Inns therefore inform usof the fact that Lords Lincoln and Gray for-merly resided in them. The Middle and InnerTemples were homes of the Knights Templars.A few were ordinary hotels, and all retainedtheir characteristic English names and signs.

This assemblage of earnest men, devoted tothe study of the principles upon which theirnational character had been founded, developedinto a popular institution of learning. It became


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24 THE HEART OF BLACKSTONEthe fashion for families of the nobility to sendtheir sons to these inns for the purpose ofacquiring a knowledge of the elements of thelaw after completing the usual college course.These inns were described by Ben Jonson asthe "noblest nurseries of humanity and libertyin the kingdom." "When taken under thepatronage of the king they became noted forthe magnificence of their entertainments. Theorganization unfortunately failed to providefor necessary discipline, and in consequencethe tone of the inns gradually declined until thetime of Blackstone, when only young men whomeant to follow the law as a profession fre-quented them.The universities did not open their doors to

the common law until 1758. In that year a chairof the Common Law of England with a salary oftwo hundred pounds per annum was establishedat Oxford by a Mr. Viner, who was honoredlater by being enrolled as one of the publicbenefactors of the university. Sir WilliamBlackstone was the first professor. He was aman of brilliant intellect, deep learning, andbroad sympathies. His poetic temperamentand classic style combined with a reverence forthe principles of freedom inherent in the Eng-lish law enabled him to present the supposedlydry and uninteresting subject in so fascinatinga manner that his lectures have continued to


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SOURCE OF THE COMMON LAW 25form the initiatory step in the study of lawboth in England and America. He should behonored as a benefactor wherever the Englishlanguage is spoken, or wherever free govern-ments formed by virtue of principles inherentin the English Constitution exist; for under itthe individual is permitted to attain his naturalestate unhampered by restrictions of thesovereign power, be that sovereign powerresident in a King, a Parliament, or held bythe People.The principles which he so nobly defended

and brilliantly expounded were wrought outthrough centuries of social experience, and arebased upon the needs of the individual. Theenlarging rights of the individual have been dis-puted, refused, and fought for all through theages. The English common law advocatedand defended them in the face of strong andwell-organized opposition. It comes to us en-riched with the blood of martyrs, sanctified bythe sacrifices of earnest men. With all its faultsand deficiencies it is a heritage for which weshould bow our heads in gratitude, and giveour heart's blood if need be, to pass onunimpaired.


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CHAPTER IIThe G-ENEBAii Pbinciples of Law

Of law there can be no less acknowledged, than thather seat Is in the bosom of God, her voice the harmonyof the world. All things in heaven and earth do herhomagethe very least as feeling her care, the greatestas not exempted from her power; both angels and menand creatures, of what condition soever, though each indifferent sort and manner, yet all with uniform consent,admiring her as the mother of their peace and joy.Richard Hooker.Law, in its general sense, is defined by

Webster as that wMch is laid, set, or fixed. Itis a term expressing and describing any regu-larly recurring phenomena in the field of nature,science, or art.The law of nature is the regular method or

sequence by which certain effects follow certaincauses; the uniform method by which materialand mental forces act in producing effects; asthe law of gravitation, the law of self-preser-vation, etc.The moral law, which is said to be contained

in the Ten Commandments, prescribes the dutyof men to their God and to one another. Itembraces those rules of conduct which arisefrom the relation of men to one another in

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GENERAL PRINCIPLES OF LAW 27society, and affirms the rights founded uponthese relations.The municipal or positive law declares the

rules of a community or a state for the pro-tection and control of its citizens. This muni-cipal law may be the edict of a ruler or theenactment of a government. It may be writtenor unwritten. When written it may be either

1. A statute, which is a particular law care-fully drawn, distinctly enacted, and publiclyproclaimed.

2. A regulation, a limited and often tem-porary law intended to secure some particularobject.

3. An edict, a command or law issued by asovereign, peculiar to a despotic government.

4. A decree, a permanent order either of acourt or of the executive government.When law is unwritten it is called in thiscountry and in England Common Law. It con-sists of maxims, well-defined principles, andestablished usage. It is also found in decisionsof judges and records of courts.The existence of law implies some form of

government. That form is of three kinds:(1) Monarchical, in which the sovereign poweris intrusted in the hands of a single individualknown as the King, Emperor, Czar, etc., andstyled a Monarchy. (2) Aristocratical, in whichthe sovereign power is placed in a council com-


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28 THE HEAET OF BLACKSTONEposed of a select number of persons and calledan Aristocracy. (3) Democratical, in which, thesovereign power is lodged in all the membersof a community and known as a Democracy.All other forms have been derived from andmay be reduced to these three.

There are. writers on governmental ques-tions who declare the sovereign power to beequivalent to the power of making laws, andthat such power resides in the Legislature.Others hold the more reasonable view, and onemore consonant with modern thought, thatgovernment is a mere agency established by thepeople for the exercise of those powers whichare inherent in the people, and that powers ofgovernment, making laws, executing them, etc.,are merely delegated to the lawmakers, specifiedas to time or not, as the case may be; that allsuch powers are therefore held in trust andmay be revoked when such trust is violated.

ConstitutionA constitution is the fundamental law of a

state which determines the political duties andsecures the rights of its citizens. This consti-tution is written, or is so imbedded in the con-sciousness of the people whose rights it protects,that it need not be spelled out in letters of blackand white. In England the constitution is notwritten but is engraved upon the hearts of the


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GENERAL PRINCIPLES OF LAW 29people. That body of principles upon whichthe character of the English race was grounded,which has preserved the independence of theHouse of Commons as the principal legislativebody, which has prevented the King from ac-quiring absolute power, which has made GreatBritain the refuge for liberty-loving and perse-cuted men of all nations, has never been writtenout by the hand of man. It was possible forthe English to hold that loose agglomeration ofprinciples in mind because their territory wassmall and they were of one race and language.In the United States, which was open from

the beginning to persons of all nations, to per-sons with high ideals and those with only theirown interests to serve, and to every form ofreligious faith and political opinion, it wasnecessary to state explicitly the principles uponwhich the States in forming a nation were tobuild their political and social structure. It wasan act of supreme wisdom to declare the exactlimitations and restrictions of each departmentof government. During the long struggle be-tween the people and the King of England, itwas necessary to bind the latter by writtendocuments to secure the people from the en-croachment of the governing power. The mostfamous and highly reverenced of these docu-ments is the Magna Charta wrested from KingJohn in the twelfth century.


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30 THE HEART OF BLACKSTONEAccording to this view a constitution is the

work and will of the people themselves in theiroriginal, sovereign, and unlimited capacity ; andlaws are the work and will of the Legislature inits derivative and representative capacity; theone the work of the creator, the other the actof the creature.

SOVEBEIGNTYThe people of a state or nation consent to a

form of government through which they ex-press their will. Sovereignty is indivisible andcan be lost only by a voluntary or forced sub-jection to or merger in another state or nation.Either all or part only of sovereignty may bedelegated by the people to certain prescribedpersons or institutions. In England the King,House of Lords, and House of Commons aregiven unlimited power ; but no one of them mayexercise it alone. It is vested in them jointly.Each State of the United States distinctly

declares in its Constitution what powers or partof sovereignty shall be delegated to the Legis-lative, the Executive, and the Judicial branchof its government. Neither branch may gobeyond the limits set by the Constitution. Thepower not specifically delegated continues toreside in the people.The Federal Constitution explicitly sets forth

the powers given to the general government by


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GENEEAL PEINCIPLES OF LAW 31the States; and it is one of the functions ofthe Supreme Court of the United States to de-clare void or nullify laws enacted by Congresswhich would, if enforced, interfere with therights or privileges of the individual States.

Municipal LawIt is the duty of the government of a state,

whatever form it may assume, to make lawsfor the protection and safety of its people. Suchlaws are called municipal and may be definedthus : A municipal law is a rule of civil conductprescribed by the supreme power of a state,commanding what is right and prohibiting whatis wrong. It consists of four partsThe Declaratory, which declares the rights to

be observed and the wrongs to be eschewed.The Directory, which enjoins the subject to

observe the rights and to abstain from the com-mission of wrongs.The Eemedial, which describes the method

by which a right may be recovered and a wrongredressed.The Vindicatory, which fixes the penalty for

committing public wrongs and for transgressingor neglecting a duty.

Interpretation of LawThe intent of a law is not always clearly

stated by the Legislature, therefore it is neces-


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32 THE HEART OF BLACKSTONEsary to provide for its interpretation by a com-petent authority. In ancient Rome this powerwas lodged in the Emperor. His interpretationwas called a Rescript, and in all succeedingcases of the same nature this interpretation wasfollowed and had in fact the force of law. Inthe United States a law whose meaning is un-certain is interpreted by the courts.There are certain well-established rules by

which the courts of the present day arrive at theintention of the legislators.

1. Words are to be understood in their usualand best known significance, or that acquiredby popular usage. Technical terms must betaken according to the acceptation of the learnedin that particular science, trade, art, etc.

2. If a word continue uncertain the meaningmust be gathered from the context, and thepreamble consulted. The law may be comparedwith another by the same legislators or withothers on the same subject. And the wholegeneral system of legislation on the subjectmay be taken into consideration in order tothrow light upon any particular act relatingthereto.

3. Words are to be understood as having adirect bearing upon the subject matter, as thelegislator is supposed to direct all his expres-sions to that end. The object designed to bereached by the act or law must limit and control


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GENERAL PRINCIPLES OF LAW 33the literal meaning of the terms and phrasesemployed.

4. Where words in the law have either anabsurd significance or none at all, the inter-preter must deviate from the received sense andread into them that which is most reasonable.

5. The reason and spirit which moved theLegislature to enact the law must be fully con-sidered and given due weight.

It is from this necessity of interpretation thatthe principle known as the "equity of a statute"arises. When a particular case does not seemto be covered by the law and yet it is obviousthat it was within the intention of the legis-lators, the judge may, in his discretion, softenthe rigor of the statute. He acts upon theprinciple, that had the legislators apprehendedits effect in the particular instance they wouldhave enlarged the law to cover it.As in ancient times the interpretation and

edict of the Emperor acquired the force of law,so now in the United States the decisions ofthe courts of justice are looked to as containingtiie evidence of what the common law is.The municipal law or statute may be general

or special, public or private. A public statuteaffects the public at large, and courts of laware bound to take notice of it without its beingbrought to their attention. Special or privateacts are rather rules operating upon particular


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34 THE HEART OF BLACKSTONEpersons and private concerns. They must bespecially pleaded to obtain consideration in acourt. Statutes are frequently provided witha "dictionary clause" which defines the per-sons, place, or things included in their con-text.In construing statutes the court takes into

consideration what the common law is, thenature of the point covered, and the remedyprovided by the statute for its cure. All lawsin derogation of common right, as conferringexclusive privileges upon corporations or indi-viduals, exempting property from taxation,interfering with the personal liberty of the citi-zens, or conferring authority to impose taxes,should receive a rigid interpretation. Penalstatutesthat is, those inflicting a penalty fortheir violationare as strictly construed as maybe consistent with carrying out the intention ofthe Legislature.Remedial statutes, or laws enacted for thepurpose of alleviating or removing an evil, areliberally interpreted. One law of the TwelveTables of ancient Rome provided that whenevera law involved a question of liberty or slaverythe presumption should be on the side of liberty.The same principle obtains in our courts. Lawswhich have reference to the public welfare,which are intended to encourage the staple pro-ductions, to maintain peace and security, to


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GENERAL PRINCIPLES OF LAW 35extend education, etc., all receive a liberalinterpretation.

If the statute modifies the common law, thelatter gives way to the statute. If the statuteis in derogation of the common law, or inviolation of a principle, it is strictly construed.A new statute takes the place of one enactedpreviously on the same subject. The repeal ofa statute will not be allowed to destroy rightswhich may have vested under its provisions.Acts of a Legislature which are impossible ofperformance are void. One Congress or aLegislative Assembly may not enact laws re-stricting the power of a subsequent Congressor Assembly.

All laws are construed to operate prospec-tively, that is, in the future, and not to coverpast acts unless the language is so clear thatthe intention of the law-making body cannotbe doubted. The aim of the court is to avoidabsurd consequences, great inconveniences, andspecific injustice.

Ex Post Faoto LawsThe enactment of penal or criminal laws to

take effect before the date of their passage isdiscouraged by the Federal and State constitu-tions. They are contrary to our sense of justiceinasmuch as they prescribe a punishment for theviolation of a law after it has been committed.


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36 THE HEART OF BLACKSTONEor alter tlie situation of the accused to his dis-advantage. There are four classes of these expost facto laws:

1. Laws which make an act done hefore thepassage of the law, and which was innocentwhen committed, criminal and punishahle.

2. Laws that aggravate a crime or make itgreater than it was when committed.

3. Laws which change the punishment andinflict a greater punishment than was legal whenthe crime was committed.

4. Laws which alter the legal rules of evi-dence, making less or different testimony neces-sary to convict the offender than was requiredwhen the offense was committed.For centuries a session of Parliament was

regarded as one day, and all laws passed duringthe session took effect from the day Parliamentconvened. This often worked gross injustice,and a change was made in the reign of Georgethe Third. Laws of our National Congress takeeffect from the day of their passage unlessanother time is specified in the statute.Laws enacted by the State Assemblies are

interpreted by the courts of the State. Thisinterpretation is usually honored and followedby the courts of other States, and by the UnitedStates judges in all questions relating to theconstruction of State constitutions.


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CHAPTEE IIIThe Absolute Eights of Persons

Moral or natural liberty Is the right which naturegives to all mankind of disposing of their persons andproperty after the manner they judge most consonant totheir happiness on condition of their acting within thelimits of the law of nature, and that they do not in anyway abuse it to the prejudice of any other man. JeanJacques Burlamaqui.

Since the municipal law commands what isright and forbids what is wrong, it is necessaryto consider the rights which are commandedand the wrongs prohibited separately and indetail.The rights of persons fall into two classes:

Those due from every citizen, called Duties;and those due to every citizen, called Eights.The rights of persons considered in their naturalcapacities are two kinds : Absolute, which belongto particular men as individuals, and Eelative,which are incident to men as members ofsociety.

Absolute EightsThe absolute rights of an individual are those

which belong to him in a state of nature, andwhich he is entitled to enjoy alone or as a

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38 THE HEART OF BLACKSTONEmember of an organized society. It is the prin-cipal aim of society to protect individuals inthe enjoyment of these rights. Although lessnumerous than the relative rights, and occupy-ing far less space in the ordinary codes of law,they are much more important. The absoluterights of a man considered as a free agent withpower of knowing and choosing between rightand wrong, good and evil, are generally summedup in one wordLiberty.

Natural liberty consists in acting as onepleases without restraint or control. Everymember of an organized society impliedly givesup part of this natural liberty in considerationof benefits arising from concerted action, andmust conform to those laws which the combinedwill of the community has established. Politicalor civil liberty is then nothing but naturalliberty restrained by human laws for the advan-tage of the general public.Courts have held that civil liberty may beunderstood in two ways: (1) the right of eachperson to live under equal laws; (2) the dutyof the state, either in its written or unwrittenconstitution, to recognize a sphere with whichthe government may not interfere. In this lastsense civil liberty is protected in the UnitedStates by the Bill of Eights appended to theFederal Constitution.One writer defines civil liberty thus: "Civil


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ABSOLUTE EIGHT OF PERSONS 39liberty, the great end of all human society andgovernment, is that state in which each indi-vidual has the power to pursue his own happi-ness, according to his own views of his interestsand to the dictates of his conscience unre-strained except by equal, just, and impartiallaws. Laws must be, therefore, the just andnecessary limits of natural liberty."Political liberty, then, is that state in whichthe individual enjoys civil liberty with security;a security only to be attained by the force ofpublic opinion, formed and influenced by anuntrammeled press, and through legislatorschosen from and by the people upon whomtheir enactments are to operate. The valueof any form of government depends upon theprotection it affords the individual under itslaws. The peace-loving William Penn says:"A government is free to the people under it,whatever the frame, where the laws rule and thepeople are a party to those laws; more thanthis is tyranny, oligarchy, and, confusion.Whenever laws attempt more than is necessaryto secure alike to every man, weak or strong,rich or poor, ignorant or instructed in theright, the moral power of seeking his own hap-piness in his own way, they invade that naturalliberty of which they should be only thebulwark. 'To obtain this security certain general rules


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40 THE HEAET OF BLACKSTONEmust be promulgated, tribunals must be erected,and courts established whose wisdom, inde-pendence, and impartiality are provided for.It is the duty of such courts to determine con-troversies arising among men, therefore powermust be given them to enforce their decrees.The people should be instructed in the purposeand methods of these courts since the strengthof every government rests upon the intelligentloyalty of its subjects. "A few laws executedare better than many that slumber on the statutebook."During the progress of civilization absolute

rights have been retained only by the utmostvigilance and determined resistance to the en-croachments of kings and princes. In Englandthey have been asserted in Parliament andfought for by the people. Their progress maybe traced through the Great Charter of libertieswrested from King John, its confirmation byhis son Henry the Third, the Habeas Corpusact passed by Parliament under Charles theSecond, the Bills of Eights delivered to Williamand Mary of Orange, and the Act of Settlementat the accession of the House of Hanover.These agreements between the people and theirrulers are thus quaintly expressed : ' ' The peopledo claim, demand, and insist upon, all andsing^ular the premises, as their undoubted rightsand liberties"; again, "All and singular the


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ABSOLUTE EIGHT OF PERSONS 41rights and liberties asserted and claimed in thesaid declaration to be true, ancient, and indubi-table rights of the people of this kingdom." TheAct of Settlement declares them to be the"birthright of the people of England, accordingto the ancient doctrine of the common law."These absolute rights were enumerated by

the English as follows1. The right of personal security.2. The right of personal liberty.3. The right of private property.

To these have been added by Americans4. The right of freedom in religious belief

and practice.5. The right of freedom of speech and of the

press.Peesonal, Secueity

The right of personal security consists in thelegal and uninterrupted enjoyment of a per-son's life, limbs, body, health, and reputation.The right to life is inherent in every indi-

vidual and begins in contemplation of law withthe infant in its mother 's womb. Such an infantis capable of having legacies made to it, aguardian assigned, and is considered born forall beneficial purposes. The civil rights of anunborn infant are respected and protected bythe law at every stage of gestation. If themother is maliciously injured so that the child


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42 THE HEART OF BLACKSTONEis born dead, the person responsible for tbeinjury may be found guilty of manslaughter atcommon law. The right to security of life andlimb is regarded so highly by the law that itexcuses even homicide if committed in self-defense or in an effort to preserve either lifeor limb from serious danger.

If a man executes a deed or other legal docu-ment under a threat of death, serious bodilyinjury, or loss of personal liberty, the law willnot compel a performance of the instrument ifhe can show to the satisfaction of the court thathe acted under a well-grounded apprehension oflosing his life, his liberty, or of being perma-nently injured. Such constraint or influence ofone man over another to the latter 's hurt isknown in law as Duress, or Duress per Minas.Duress consists of threats made against

another's liberty of motion, as imprisonment.Duress per Minas consists of threats madeagainst another's life or limbs. The commonlaw maxim covering this principle is, "He isjustified who acts in pure defense of his ownlife or limbs."

This justification does not extend to threatsmade to beat another, or to burn his house,destroy his goods, etc., because the injured per-son may recover compensation or their valuein money through legal process. No adequatecompensation can be secured for either loss of


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ABSOLUTE EIGHT OF PERSONS 43life or of a physical member. Duress of goodsunder circumstances of peculiar hardship anddiflBculty has enabled a man to avoid a con-tract, but that is rare. In all cases of Duressthe man injured must show that his fear is"not the apprehension of a foolish and fearfulman, but such as a courageous man may besusceptible of; it should be, for instance, sucha fear as consists in apprehension of bodilypain or danger to life."

Besides those limbs and members necessaryfor a man to defend himself, or to annoy hisenemy, the rest of his person or body is entitledby the same natural right to security fromcorporal insults of menaces,, assaults, beating,and wounding, although not amounting to de-struction of life or the loss of the use of a limb.One is protected also from any practice whichwould injure his health, his reputation, or hisgood name. These are all rights to which everycitizen is entitled by natural justice, since with-out any one of them he may not obtain perfectenjoyment of any other advantage or right.

Peesonal LibebtyPersonal liberty consists in moving one's

person to whatever place one may desire with-out restraint or imprisonment, unless by dueprocess of law. Magna Charta affirmed thisright in these words: "No freeman shall be


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44 THE HEAET OF BLACKSTONEtaken or imprisoned but by the lawful judgmentof his equals, or by the law of the land."The violation of this right led to the develop-ment of the great writ of Habeas Corpus. Bythis writ a person imprisoned for any offenseother than treason or felony may be broughtbefore the proper magistrate, his imprisonmentinquired into, and, if proved to be unlawful, im-mediately released. The confinement of a per-son in any way is an imprisonment under thelaw. Keeping a person in a private houseagainst his will, forcibly detaining him in thestreets, illegally arresting him, are all examplesof imprisonment.The writ of Habeas Corpus has been changedin some particulars by statute in many of theStates, but its general principles remain thesame.The right of personal liberty is considered

of such paramount importance that it has beenmaintained by statesmen that unjust attacksupon the life or property are less dangerous toa commonwealth than attacks upon the per-sonal liberty of the citizen. The Federal Con-stitution safeguards this right by the followingunqualified provisions: "No person shall bedeprived of life, liberty, or property withoutdue process of law." "Excessive bail shall notbe required." "The right of the people to besecure in their persons, houses, papers, and


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ABSOLUTE EIGHT OF PERSONS 45effects against unreasonable searches andseizures shall not be violated." "The writ ofHabeas Corpus shall not be suspended unlesswhen, in cases of rebellion or invasion, thepublic safety may require it." Also in theBills of Rights of each State like provision is-found.Magna Charta declared against the banish-ment' of a person from the realm except by a

judgment of his peers. But transportation andexile are no longer recognized as means ofpunishment by the common law.

Petvate PbopbbtyThe right of private property consists in thefree use, enjoyment, and disposal of all one'sacquisitions without control or diminution, ex-cept by the law of the land. Magna Chartadeclared: "No freeman shall be disseized or-divested of his freehold, or of his liberties, orfree customs, but by the judgment of his peersor by the law of the land." Various ancientstatutes enacted: "No man's lands or goodsshall be seized into the king's hands, against theGreat Charter and the law of the land; andthat no man shall be disinherited, nor put outof his franchise or freehold, unless he bebrought to answer, and be forejudged by courseof law ; and if anything be done to the contrary,it shall be redressed, and holden for none."


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46 THE HEART OF BLACKSTONEThe Federal and State constitutions provide

for the taking of private property for publicuse upon payment of a just compensation. Theright to destroy private property in order toprevent the spread of a conflagration is neces-sary to protect the public, and cannot be denied.The taking of private property under the guiseof taxes, aids, levies, etc., has been the causeof long and bitter controversy between thepeople and their governments. The right ofthe government to acquire property for itslegitimate uses by making a just compensationis called the right of Eminent Domain.

Religious LibertyThe world was a long time coming to the idea

, of freedom of religious belief and practice. Inancient times religion and law were inter-changeable names for the same thing. Everycountry had its own religion and worshiped itsown gods. If the country was subjugated ordestroyed, the gods died with the governmentand religion. Gradually the human mind ex-panded to the conception of one Supreme Being,present in all parts of the earth at all times;and that the different religious faiths were butdifferent interpretations of the same greatrevelation. Law separated from religion, eachtaking its own course of development and pro-moting the progress of civilization along its


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ABSOLUTE EiaHT OF PERSONS 47own lines. In modern times the tendency hasbeen to complete separation of church and statewith full freedom for the individual to choosehis own religion, and to worship God as con-science dictates without advice or interferencefrom the government. The Federal Constitutionprovides that "Congress shall make no lawrespecting an establishment of religion or pro-hibiting the free exercise thereof." Practicallythe same provision has been embodied in theconstitutions of all the States.

Fbeedom op SpeechCongress is forbidden by the Constitution to

enact any laws abridging the freedom of speechor the press. The State constitutions have moreparticular and precise clauses on the subject.The following is from the Constitution ofPennsylvania: "The printing presses shall l)efree to every person, who undertakes to examinethe proceedings of the Legislature and anybranch of goverimient, and no law shall everbe made to restrain the right thereof. The freecommunication of thoughts and opinions is oneof the invaluable rights of man; and everycitizen may freely speak, write, and print onany subject, being responsible for the abuse ofthat liberty."These absolute rights are maintained invio-

late by the following subordinate ones


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48 THE HEART OF BLACKSTONE1. The Great Charter affirms the right of

every citizen, "For injury done him, by anyother subject, without exception to take hisremedy by course of law, and have justice andright for the injury done to him, freely withoutsale, fully without denial and speedily withoutdelay. " Or in other words, the courts of justicemust be open at all times and the law duly ad-ministered therein.

2. For an uncommon injury or infringementof these rights which the ordinary course of lawmay not reach, another right is secured by theConstitution as follows: "The right of thepeople peaceably to assemble and to petition thegovernment for a redress of grievance shall notbe prohibited."

3. Provisions in both the Federal and Stateconstitutions preserve to the people the rightto keep and bear arms for resistance and self-preservation when the law is insufficient to re-strain the violence of oppression. These pro-visions do not prevent the enactment of lawsagainst the carrying of concealed deadlyweapons by private citizens when such practicewould endanger others.

All natural rights and liberties are ours toenjoy freely and fully except where the well-considered and firmly established law of theland lays them under necessary restraints.


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CHAPTER IVBBiiATTVB Rights in Respect to. Public

RelationsThe accumulation of all powers, legislative, executive,

and judicial. In the same hands, whether of one, a few, orthe many, and whether hereditary, self-appointed, or elec-tive, may be justly pronounced the very definition oftyranny.^rTie Federalist.The rights and duties of persons arising from

their relation to one another as members ofsociety are either Public or Private. The mostgeneral public relation arising from the asso-ciation of men is that of Government. In everyorganized society there are governors andgoverned; magistrates and people. Magistratesare Supreme, those to whom the sovereignpower of the state is delegated; and Subor-dinate, those who derive their authority fromthe supreme magistrates and act in an inferiorcapacity.In all autocratic governments the supreme

magistracythat is, the right of making and en-forcing the lawsis vested in one and the sameman or in one and the same body of men. Ingovernments of that kind true liberty cannotexist, therefore the tendency of modern progress

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50 THE HEAET OF BLACKSTONEis toward the separation of the various powersof government.In England the legislative power is vested in

the King and Parliament; the executive in theKing alone. The word Parliament, derivedfrom the French, is of comparatively modernorigin, and means an assembly of men that meetand confer together. It was first applied to thegeneral assemblies of France under Louis VII,about the middle of the twelfth century; Thefirst mention of it in English statute law was in1272; but it is known that councils were calledfor the discussion of matters of importance inthe different kingdoms of the island long beforethe Normans came into it. The practice wascommon among all German tribes. Tacitussays, "Concerning lesser affairs the leaders con-sult, but in graver matters all the people. ' ' Theearly English called their legislative body the"great council," the "great meeting," and the"meeting of the wise men."After the small kingdoms combined, King

Alfred issued the following decree: "For aperpetual usage, that these councils should meettwice in the year, or oftener if need be, to treatof the government of God's people; how theyshould keep themselves from sin, should live inquiet, and should receive right."

These great councils were held occasionallyunder the first princes of the Norman line, but


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PUBLIC RELATIONS 51the constitution of Parliament as it now standswas probably effected by the Great Charter in1215, when King John agreed "to summon allarchbishops, bishops, abbots, earls, greaterbarons, and all other tenants in chief, to meetat a certain place with forty days' notice, toassess aids and scutages when necessary."At the present time when a new Parliamentis elected the King selects as Prime Minister

the leader of the political party having a ma-jority in Parliament. The prime ministerselects members of his party as heads of thedifferent executive departments. These namesare ratified by the King, and the body chosenbecomes his cabinet, often called The Ministry.The ministers are jointly responsible to theHouse of Commons, and an adverse vote onlegislation advised by them, obliges them to re-sign in a body. The King then calls upon theleader of the opposition to form a new cabinet,or he dissolves Parliament and orders a newelection. Unless Parliament is thus proroguedby the King its term of office is seven years.It must convene as often as once in three years.The usual practice is to convene each year andremain in session an indefinite time. It is nolonger prorogued by the death of a sovereign.In the United States the supreme power or

sovereignty resides in the people, who delegatecertain powers to the different branches of


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52 THE HEABT OF BLACKSTONEgovernment. After the Eevolution the inde-pendent and sovereign States granted specificpowers to the Federal government. Thesepowers are distinctly set forth in the instru-ment called the Federal Constitution, or theConstitution of the United States.

CONSTITITTIONAI, CoNVENTIOlfThe Constitutional Convention was called inMay, 1787, and was composed of delegates fromthe thirteen original States. After much dis-cussion it was found impossible to amend theArticles of Confederation so as to meet theneeds of the country, and the Convention, there-fore, recommended an entirely new Constitu-tion. It was approved by the Legislatures ofall the States, Ehode Island being the last oneto act on it in May, 1789. The new governmentwas immediately organized under it, and thefirst President, Greorge Washington, was in-augurated on the 30th of April, 1789.The Constitution creates departments for the

exercise of sovereign power and declares:"This Constitution and the laws of the UnitedStates which shall be made in pursuance thereof,and all treaties made, or which shall be made,under the authority of the United States, shallbe the supreme law of the land ; and the judgesin every State shall be bound thereby, anythingin the Constitution or laws of any State to the


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PUBLIC RELATIONS ' 53contrary notwithstanding." The United Statesis given authority over the whole territory ofthe Union, acting upon the States and the peopleof the States. It is limited in its powers, butwherever its sovereignty extends it is supreme.The Constitution never yields to a treaty nor

to an enactment of Congress. It is not alteredby time, and does not yield to any combinationof circumstances. It may be amended only byits own provisions for amendment. It is "Alaw for rulers and people, equally in war andin peace, and covers with the shield of its pro-tection all classes of men, at all times and underall circumstances. ' ' It establishes three depart-ments of government, and determines theirpowers directly or by implication. They are:The Legislative, which makes, amends, and

when advisable repeals the laws.The Executive, which executes and enforces

the laws.The Judicial, which construes and applies thelaws when controversies arise under them.

Legislative DepaetmentThe Legislative powers granted by the Con-

stitution to the United States are vested in aCongress consisting of a Senate and a House ofRepresentatives, and are subject to a qualifiedveto in the President of the United States. TheState Legislatures provide for the time, place.


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54 THE HEART OF BLACKSTONEand manner of holding election for the membersof Congress. All the regulations of the States,however, may be changed by Congress exceptthe place for electing Senators. The Consti-tution originally provided that the members ofthe Senate should be elected by the Legislatureof the State which the Senator represented ; butsince the adoption of the amendment for thepopular election of Senators, the members ofboth Houses of Congress are elected directlyby the people.The House of Eepresentatives is composed

of members elected every second year by thepeople of the several States. The qualificationsof the voters, and the manner of electing Eepre-sentatives must be the same as those used bythe State for the election of members to thelower house of its legislative assembly. Eepre-sentatives are apportioned among the Statesaccording to their respective populations, ex-cluding Indians not taxed. The inhabitants ofthe District of Columbia, Alaska, and of theIsland Possessions are not counted in this basisof representation. When the Constitution wasadopted the ratio of representation was one tothirty thousand; but according to the last ap-portionment, made in the year 1913, the ratiowas changed to that of one to one hundred andninety-two thousand one hundred and eighty-two of the population; making the present mem-


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PUBLIC RELATIONS 55bership of the House four hundred and thirty-five.A Representative must be a resident of theState at the time of his election; must havebeen a citizen of the United States at least sevenyears, and be not less than twenty-five years ofage. The House of Representatives elects itsown officers. The presiding officer is known asthe Speaker ; a term used in England, where itwas first applied to the presiding officer of theHouse of Commons in 1377.The Senate is composed of two members from

each State, elected for a term of six years. Themembership is divided into three classes, oneof which is elected every second year with themembers of the House of Representatives. ASenator must be at least thirty-five years ofage, must be a resident of the State from whichhe is chosen, and must have been a resident ofthe United States for nine years. The Senateelects all its officers except its president. TheConstitution provides that the Vice-Presidentof the United States shall preside over theSenate, and cast the deciding vote in case of anequal division of Senators. In the absence ofthe Vice-President, or when the latter is calledupon to exercise the office of President of theUnited States, a President pro tempore iselected.Each House is the judge of the elections.


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56 THE HEAET OF BLACKSTONEreturns, and qualifications of its own members,determines the rules of its proceedings, pun-ishes its members for disorderly conduct, andwith the concurrence of two thirds, may expela member. Each House is required to keep ajournal of its proceedings and from time totime to publish it, excepting such parts as inthe judgment of the members require secrecy.The votes of the members on any question areentered on the journal, that they may be amatter of record, upon the demand of one fifthof those 'present. A majority of the member-ship of each House constitutes a quorum to dobusiness, but a smaller number may adjournfrom day to day, and may compel the attendanceof absent members. Neither House may ad-journ for more than three days, nor to any otherplace than where the Congress is sitting, with-out the consent of the other.The members of both Houses are exempt from

arrest for all cases except treason, felony, andbreach of the peace, during the attendance atthe sessions of their respective Houses, or ingoing to and returning from the same ; and theymay not be questioned as to anything said indebate in the transaction of legitimate business.A member is not permitted to hold another civiloffice under the authority of the United Statesduring his term as a member of Congress.

Either House may originate bills and may


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PUBLIC RELATIONS 57propose amendments to, or concur in, theamendments of the other. Each member hasan eqnal right of introducing bills with everyother member. Eevenue bills, that is, bills forraising money for the expenses of the govern-ment of the United States, must be introducedfirst in the House of Eepresentatives, but maybe altered by amendments in the Senate. Whena measure is adopted by both Houses it doesnot become a law until it is signed by the Presi-dent of the United States. If the Presidentvetoes it, that is, refuses to sign it, he returnsit to the House in which it originated. If bothHouses by a two-thirds vote pass it over hisveto, it becomes a law without the signature ofthe President. If the President does not whollyapprove of the measure as adopted by Con-gress, and does not wish to sign it, but still doesnot want to defeat it, he may hold it ten days,Sundays excepted, when it becomes a law with-out his signature.Congress convenes annually the first Monday

in December, at twelve o'clock, noon. Thefirst, or long session, may continue during theentire year; but the second, or short session,must adjourn by the fourth day of the followingMarch ; that being the date of the expiration ofthe term of the members of the House ofEepresentatives and of one third of the Sena-tors. The Congress may be convene^ in extra


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58 THE HEART OF BLACKSTONEsession at other times by proclamation of thePresident of the United States.

Executive DepartmentThe executive branch of the government is

vested in a President, and a Vice-Presidentelected for a term of four years. To be eligiblefor the Presidency, one must be a natural-bomcitizen, a resident of the United States fourteenyears, and at least thirty-five years of age. Incase of the death or resignation of the President,removal from office, or inability to dischargeits duties, the Vice-President succeeds to hisplace. Should the Vice-President become in-capacitated, the office devolves upon the Cabiuetofficers in the following order : the Secretary ofState, the Secretary of the Treasury, the Secre-tary of "War, the Attorney-General, the Post-master-General, the Secretary of the Navy, andthe Secretary of the Interior.The Cabinet officers are appointed by the

President and confirmed by a two-thirds voteof the Senate. They are advisers merely, andform a body similar to that of the Ministry ofthe English government. Their term of officeis presumably that of the President, who istheir chief and responsible for all their offi-cial acts. They are sometimes called Executiveagents.The President is Commander-in-Chief of the


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PUBLIC RELATIONS 59army and the navy of the United States, and ofthe militia of the several States, when calledinto actual service. He nominates, and, withthe consent of the Senate, appoints Ambassa-dors, Public Ministers, Consuls, and all otherofficers whose appointment is not provided forin the Constitution or by act of Congress. Withthe advice and assistance of the Secretary ofState, he negotiates treaties with foreignpowers. The treaties are not operative, how-ever, until ratified by a two-thirds vote of theSenate. When Congress convenes, and duringthe session, he may give information on thestate of the Union, and recommend suchmeasures for legislation as he deems necessaryor expedient; and he may call an extra sessionof Congress for special and immediate legisla-tion. The Constitution gives him the power ofgranting pardons and reprieves for offensesagainst the United States in all cases exceptthat of impeachment. His compensation,seventy-five thousand dollars a year, is fixed byact of Congress and may not be changed totake effect during the period for which he waselected.

JuDiciAii DepartmentThe Constitution provides ' ' That the judicial

power of the United States shall be vested inone Supreme Court, and in such inferior courts


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60 THE HEAET OF BLACKSTONEas Congress may, from time to time, ordainand establisli."A court is defined to be "A tribunal createdby the State for deciding controversies con-cerning legal rights, and for the prevention,redress, or punishment of legal wrongs."Courts have existed from very ancient times,but modern tribunals derive their authorityfrom the Constitution or statutes of the States,and consist of one or more judges, clerks,sheriffs, jurors, and such other officers as arenecessary for executing orders and decrees.The number of Judges of the Supreme Court

of the United States is at present nine. Theyare appointed by the President, and serve duringlife or good behavior, and have the privilege ofretiring at the age of seventy years. The num-ber may be changed, but may not be diminishedso as to deprive any member of office. TheCourt sits in the Capitol in Washington, in aroom used formerly as the Senate Chamber. Itconvenes in October and holds sessions through-out the fall and winter.

Congress has organized and established fiveinferior Federal Courts, making in all sixcourts under the laws of the United States.They are : the Supreme Court, the Circuit Courtof Appeals, the Circuit Courts, the DistrictCourts, the Court of Claims, and the Courts ofthe District of Columbia.


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62 THE HEART OF BLACKSTONEEach State has a Supreme Court to which

are brought all questions concerning the inter-pretation of its laws and their application tothe facts of the controversy; and its constitu-tion provides for the establishment of inferiorcourts, for the appointment or election ofjudges, their duties, terms of office, etc.

Congress has provided that the courts of theUnited States shall have jurisdiction in the fol-lowing cases, exclusive of the courts of theState

1. All crimes and offenses cognizable underthe authority of the United States.

2. All suits for penalties and forfeitures in-curred under the laws of the United States.3. All civil causes of admiralty and mari-

time jurisdiction, except where the common lawremedy is adequate.

4. All seizures under the laws of the UnitedStates, on land or waters not within theadmiralty and maritime jurisdiction.

5. All cases arising under patent-right orcopyright laws of the United States.

6. All matters and proceedings in bank-ruptcy.

7. All controversies of a civil nature wherea State is a party, except between a State andits own citizens, and between a State and citi-zens of other States, or aliens.

8. All actions arising under the postal laws.


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PUBLIC RELATIONS 63in regard to duties and revenue laws; for theviolation of the United States statutes for theprotection of civil rights; the deprivation ofrights, privileges, and immunities, etc., grantedby the Constitution; and others of a more in-definite nature.

Subordinate MagistbatesBesides the President and Vice-President of

the United States, Members of Congress,Judges of the Federal and State courts, Gov-ernors and Lieutenant-Governors of the States,there are many public officers connected withthe various branches of our government whoare classed as subordinate magistrates. Theyare:The Marshal, appointed for each judicial

district of the United States, whose duty is toexecute the process of the Federal courts.The Sheriff, either appointed by the Governorof the State or elected by its citizens. His duty

is to execute the civil and criminal process ofthe county court, to take charge of the jail andthe prisoners, to attend the sessions of thecourt, and to keep the peace.The Coroner, whose duty is to inquire intothe manner of violent deaths, and to act as a

substitute for the Sheriff if for any reason thelatter is incapacitated.In addition to these public oflScers there are


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64 THE HEART OF BLACKSTONEothers of a quasi-public nature, such, as thesuperintendents and teachers of the publicschools and minor ofl&cers.

Responsibility op Public OfficialsThe State is not responsible for the miscon-

duct or neglect of public officers and is notbound by any acts beyond the scope of theauthority conferred upon them. Every publicofficer is presumed to know his legal duties andthe limit of his authority ; and ignorance thereofwill not excuse him from personal liability forany act exceeding that authority. The processof impeachment is used in cases of officialnegligence or oppression on the part of thePresident, the governors of States, judges ofthe higher courts, and other officers of greatpolitical importance. If an officer is convictedunder this process, he is removed from officeand disqualified forever from holding any officeunder the Constitution.

Legislative bodies have the right of suspend-ing and expelling their members, and superiorofficers may dismiss their inferior officers aftera hearing or trial provided by law for thespecific violation. All persons dealing withpublic officers are supposed to understand thescope of the officer's authority, and act at theirown peril when ignorant.


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CHAPTER VEEiiAirvB Rights in Respect to Pbivate

Relations^

Lex the great general duty of submission to civilauthority be engraven on our hearts, wrought into thevery habit of our minds, and made a part of our elementarymorality. Hall.

The most important relations of private lifeare four:

1. Master and Servant, which, is founded inconvenience, whereby a man may call uponothers for assistance when his own skill andlabor are not sufficient.

2. Husband and "Wife, which is founded innature, but modified by the regulations of civilsociety.

3. Parent and Child, which is based uponthe necessity of protecting, maintaining, andeducating children.

4. Guardian and Ward, which is an artificialparentage to supply the natural relation ofparent and child when that relation fails.

SlaveryPerhaps the dominant factor of English

65


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66 THE HEAET OF BLACKSTONEcivilization is the love of personal freedom. Thecommon people of England from the earliesttimes could not endure slavery in any form.In the year 1543, a law was enacted by Parlia-ment requiring all idle vagabonds to be fed onbread and water, small drink, and refuse meat;to have an iron ring soldered round their necks,arms, and legs ; and to be compelled, by beating,chaining, or otherwise, to perform the workassigned them. The people considered this aform of slavery, and compelled Parliament torepeal the law in less than two years after itspassage. They would not allow so degradinga system to exist even though its purpose wasto promote industry and discourage idlenessand sloth. The institution of slavery flourishedin the United States from the day the first ship-load of Negroes landed in Jamestown, Virginia,in the year 1619, until the Emancipation Procla-mation of President Lincoln went into effectin 1863.The practice of binding a person to serve a

certain term of years to a master who is boTindto maintain and instruct him during that timefor his labor, is called Indenture, and is of avery remote origin. During the middle ages itwas used not only in the trades but also in themore polite occupations, such as husbandmenand gentlemen. Children of poor parents wereapprenticed, or bound out until they were


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PRIVATE RELATIONS 67twenty-one years of age, with the consent oftheir parents and two justices. Gentlemen offortune, clergymen, and others able to main-tain other children than their own, were com-pelled to take one or more of the poor childrenof the parish. The law provided a means bywhich the apprentice could be discharged uponreasonable cause either at his own request orthat of his master.

This form of service is seldom used in theUnited States. The method now in vogue ishiring by the day, week, or month. The servantin this way does not become so intimate a mem-ber of the family.There are many statutes in England regulat-ing the subject of service and declaring that allwho have no visible effects may be compelled towork; prescribing the time of work in summerand in winter; the method of punishing thosewho desert their work ; empowering the properofficers to settle wages ; and inflicting penaltiesupon those who exact more than is due, or whopay more than is legal, etc. By the laws ofKing Alfred, a servant was allowed to fight forhis master, a parent for his child, a father forthe chastity of his daughter, and a husband forthe honor of his wife.By virtue of the common law a master maymaintain, that is, abet and assist, his servantin an action at law against a stranger, although


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68 THE HEART OF BLACKSTONEit is an offense against public justice to en-courage suits at law by helping to bear the ex-pense of them. He may also defend his servantin an assault because of his interest in theservice which the servant is under obligationto render him. The servant, also, may jus-tify an assault in defense of his master, be-cause it is a part of his duty to do all that themaster himself may do in defense of his ownperson.

If the servant commit a trespass by the com-mand and encouragement of his master, themaster is held guilty, although the servant isnot wholly excused ; he is supposed to obey onlyin matters that are honest and lawful. If aservant causes loss to a stranger by his negli-gence while in the actual employ of the master,the latter must answer for the injury. Thisprinciple was, illustrated by a provision of theancient common law that if a servant kept hismaster's fire so negligently that a neighbor'shouse was burned, the master was liable for theamount of actual loss to the owner. Accordingto the law of the famous Twelve Tables ofEome, a person by whose negligence a firebegan was bound to pay double the loss to thesufferers ; and if the careless party were unableto pay, he was subjected to some form of cor-poral punishment. The wrong done by theservant is the wrong of the master who com-


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PRIVATE RELATIONS 69mands him. This principle is based upon thelegal maxim, "No man shall be allowed to makeany advantage of his own wrong."

Husband and WipeThe relation of husband and wife was known

under the old common law as that of baron andfeme. Upon marriage the legal existence of thewoman was incorporated in that of her hus-band, "under whose wing, protection, and covershe performed everything." She was calledin law French a feme covert, and her conditionwas known as that of coverture.Upon the principle of the union of husbandand wife in one person depended all the legal

rights, duties, and disabilities, acquired by eachwhen entering into the marriage relation. Theunion was never perfect, however, for upon thewife fell most of the disabilities and burdens.Losing her legal existence, she no longer hadcontrol over her own property. Her personalproperty vested in her husband immediatelyupon marriage, and at his death he could willit entirely away from her. If he died withouta will, she had a right to but one half if therewere no children ; and to but one third if therewere children. AH the profits from her landsnd real estate went to her husband during herlite ; and if she gave birth to a living child, thelaw gave him the use of it until his death even


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70 THE HEAET OF BLACKSTONEwhen he survived her. If she outlived him shecould claim the use of but one third of his realestate during her lifetime.The law discriminated against the wife in

other ways. If the husband, or baron, mur-dered his wife, the crime was equal to that ofkilling a stranger. But if the wife killed herhusband, she was held guilty of a crime againstauthority, and was punished with the sameseverity as one who had slain the King. Theman was drawn and hanged; the woman wasdrawn and burned alive. Women were notallowed the benefit of clergy, and howeverlearned they might be, were sentenced to deathand executed for manslaughter, bigamy, thefirst offense in petit larceny, and many otherminor offenses.The husband was protected in his right of

moderately chastising his wife ; an ancient privi-lege so highly considered and lovingly cher-ished, that the Supreme Court of North Caro-lina, in 1866, declared, "A husband has the rightto whip his wife with a stick as large as hisfinger but not larger than his thumb." Thisdoctrine, however, has been entirely abandonedby the American courts, and, in fact, never wasfully incorporated into the American law,although it was offered as a defense in theDistrict of Columbia as recently as the year1895.


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PEIVATE EELATIONS 71Mabbiagb

The common law considers marriage a civilcontract and protects it if the parties enteringinto it are able, willing, and actually did con-tract according to the required forms. Themaxim of the civil law followed by the commonlaw is, "Consent, and not cohabitation, makesthe marriage." A marriage is, therefore, com-plete if there is full, free, and mutual consentbetween parties capable of contracting.

All persons are able to contract, unless labor-ing under a few disabilities, determined by lawsenacted by the various States. These are:(1) precontract; that is, being already married;(2) consanguinity, or related by blood ; (3) affin-ity, related by marriage; (4) want of legal age;(5) lack of mental capacity to enter into anycontract. The common law age is twelveyears for girls, and fourteen years for boys;but the age for both has been raised bystatute to eighteen and twenty-one in most ofthe States.A marriage may be dissolved for variouscauses. There are two kinds of divorces:avinculo matrimonii, from the bonds of matri-mony ; and amensa et thoro, from bed and board.In the United States the word "divorce" gener-ally implies a complete annulment of the mar-riage tie, and not a mere separation.The causes for which divorces are granted


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72 THE HEART OF BLACKSTONEare established by the laws of the States. Thelength of residence necessary to give the courtsof the State jurisdiction varies from a fewmonths to five years. The court usually pro-vides for the support of the divorced womanby giving her alimony; that is, a certain sumof money paid by the month out of the hus-band's income.The States have enacted laws amelioratingthe rigors of the common law

the heart of blackstone

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