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could be kept in bond sixty days. After a certain Twelve Tables did not contain all the law, but that period a judgment debtor might be sold beyond there was a body of customary law, in part unthe Tiber, or punished with death, and his credit- written, which was not abrogated, but was evaded ors were permitted to cut out their several portions or amplified by persons acting under the ideas of of his body. From this method of collecting judg- later times; “ using, however, the Twelve Tables as ments by execution against the person, there was a a firm foundation for the structure of private law.” natural transition to execution by the sale of the In the great development of Roman law, from the "universal succession ” of a debtor, and last of all Twelve Tables to the institutes of Justiuian (A. D. by the sale of particular pieces of property. When 533), there was a remarkable change in arrangethe Romans finally resorted to the property of the ment and classification. In the Twelve Tables judgment debtor for the collection of the judgment, procedure stands first, while in the Institutes it the practice was instituted, which has come down comes last. Substantive law takes precedence in to our day, of taking first the personal property be- the later classification, and the principle is recogfore resorting to the land, and the sale was con nized that procedure is only a means to an end. It ducted by officers of the court.

is also worth while to remember that the Romans Another peculiarity of the early Roman procedure understood and applied the essential features of was that it required the actual presence of the par jury trial. There were “judges of the law” and ties. No attorney or agent was admitted, and only also “judges of the facts, who answered to our a Roman" citizen could take part in actions.


jurors, and it was fundamental principle of dwelling in Rome were wholly shut off. The length Roman law that no citizen could be condemned of time given to the defendant to answer a sum except upon the judgment of his fellow citizens, or mons was at first five days, afterwards ten days, bis“ peers.' and it was finally established by Justinian at twenty T

Trial by jury is not an institution of exclusively days, which is the present rule in our courts of English origin. The essential principle of the jury, record.

which involves the selection of judges unknown beThe early Roman law contained no provision for forehand, from a particular body, with the power costs; in the “ sacramentumeach party deposited of deciding within certain limitations, and under a "stake,” which went, however, not to the winner, the direction of certain rules, on questions of fact, but to the State, to pay the expenses of the court, is to be found in the institutions of many other and it was only by a very slow development that

countries already noted. It was a peculiar characthe Romans arrived at a system which recognized teristic of the laws of the northern bai barians, and the principle so familiar to iis, that a person who

was the cornerstone of the Athenian constitution, makes an unjust claim, or resists a just claim, is

whence it was probably borrowed by the Romans; regarded as inflicting a distinct wrong, and is and during the middle and later period of Roman bound to make compensation, the measure of which law, the suitor was entitled to submit bis cause is well described by the term “costs.” In A. D.

to judges of the facts, drawn by lot from annual 530, Justinian enacted that the defcated litigant lists prepared for that purpose. The functions of should pay costs to the victor, according to estab the magistrate and of the judex were kept almost lished allowance, and if the jndges neglected to im- entirely npart. For many centuries the Senators „pose costs they could be compelled to pay the costs

alone were judges, but afterwards this power was themselves.

transferred to the Knights. After a series of conIn the early days the Roman magistrates were tests the right was shared by the two orders, and independent of each other, representing theoreti-extended to persons even of inferior rank; so that cally the sovereign power of the people; conse the 300 of the Senatorial times had become 4,000 quently there were no appeals from their judgments; by the time of Augustus. Although several cenbut as the system developed, an appellate tribunal turies later, this body quite strongly resembled the was provided, and appeals were allowed. Costs on

Greek dicastery, for which a list of 5,000 names appeal were in the discretion of the court,

was prepared, divided into ten sections. Cases inSo much of the later Roman law has become a volving the rights of foreigners were at first deterpart of modern systems of jurisprudence, and is mined by a tribunal, composed of three or more therefore so familiar to the modern lawyer, that it persons, called recuperatores, " acting as jurors, is unnecessary at this time to discuss other import which at a later period had jurisdiction in cases beaut features, such as evidence, equity, special proceed-tween citizens. ings, real and personal actions, and damages. The We possess very little reliable knowledge of the purpose of this sketch is to show the pioneer con laws and customs of the ancient Britons. The conditions of procedure, rather than law in its maturer quest of Britain by the Romans about 55 B. C. and form; and it is important to remember that the. I their occupancy for five centuries, necessarily im


pressed the Roman system upon the early institutions An examination of the English system of trial by of that country, notwithstanding the general rule of jury shows that jurors were at first witnesses, and Roman policy to leave the legal systems of con that the development of the system to its present quered nations undisturbed as far as practicable condition was very slow. No one was competent to

imposing only such part of Roman law as the sit as a juror, unless he had some knowledge of the exigencies of government might seem to demand facts, and if upon being summoned the jurors made but the presence of a superior civilization in early oath that they had no such knowledge, they were Britain could hardly fail to have its effect in modi- rejected and others were summoned in their places fying legal institutions. This effect was not wholly and it took centuries to develop the idea of trying destroyed by the later Danish and Saxon invasions. questions of fact before a jury upon evidence, and Traditional laws naturally suffer insensible varia

before men who knew nothing of the facts, but detions in practice, so that while it is easier to

cided the controversy upon the testimony of witdiscover the differences between an ancient and a nesses; and yet trial by jury involves the essential modern usage, it is impossible, as Sir William duty of “deciding upon contradictory testimony Blackstone points out, to define the precise time at

and discriminating the balance of credibility.” The which the alteration accrued before the period of old practice of arbitration, originating with the written law.

Saxon county court, was still retained, even after The great tribunal among the Saxons for civil trial by jury was well established. The old rule of business was the county court, held once every four trying cases before a jury “from the vicinage,” has weeks. Here the sheriff presided, but the suitors

come down to us, and is so firpıly established that of the court, as they were called, that is, freemen or it is not likely to be soon disturbed, for it is based landowners of the county, were the judges, and the upon the familiar principle that the matter in dissheriff was to execute the judgment, assisted, if pute should be tried where it arose, by neighbors need be, by the bishop. ' In this county court the of the parties, with such knowledge of them and of people formed a sort of tribunal composed of the the subject matter as might either assist them in neighbors, who heard the testimony of the witnesses forming a correct judgment, or serve to test the and settled the disputes among themselves by dis- credibility of the witnesses brought before them. cussion, or perhaps by acclamation, somewhat like The popular character of the administration of the Athenian dicasteries, without any form of regular justice among the Goths was particularly noticeable justice or the rules of a legal tribunal. It was a mere in the early Swedish tribunals. The defendant had rough arbitration by the neighbors, and gradually five days from the summons to the trial, and on the gave place to a more orderly system.” The Saxons fifth day the complainant and defendant met at the introduced into early English institutions a spirit village assembly, which was held in the open air, of freedom and equity that has never wholly depar-, and before the trial commenced each party" abjured ted from them. We derived from these barbarians all falsehood and deceit.” Afterwards this simple a spirit of freedom, infusing life and vigor and en system gave way to a more regular and technical ergy into all their institutions, and their broad form, and the country was divided into districts, in principles of popular government and especially each of which was appointed a "law-man " and a their popular courts, cultivated a spirit of freedom jury of twelve men. which was the foundation of our modern institu The early Irish or Brehon law illustrates the tions. As originally organized, the only jurisdic- weakness of the State, and the imperfect conception the king had in the county court was to issue tion of its authority in matters of private litigation, a writ, requiring the sheriff to hear the case; and already noted. The complainant seized the prothe king took no other part in the administration perty of the defendant hy a violent “distress," and of the law. The first step in improvement was the the judicial power was exercised to compel the deappointment by the crown of a special justiciary to fendant to give satisfaction to the complainant as & hoid the county court. By a later development all condition of receiving the aid of the court in restorjudicial proceedings were commenced by the “King's ing his property. The aid of the court was inwrit.” This grew out of the idea that the king was voked, not to begin the litigation, but to settle & the source and fountain of justice, and was perhaps quarrel already going on. a direct resnlt of the feudal system, by which the We also find here a custom, which was still more king was recognized as the paramount lord, and firmly established among the Hindus, of invoking he had sole authority to appoint judges, who acted the aid of religion to compel debtors to discharge in his place in the administration of justice. Out their obligations. This was only another form of of this practice, and from this theory, developed the “ Distress.” notion of sovereign or superior tribunals, to which Many codes were adopted during the Middle ap peals could be brought from inferior courts. Ages, several of which were based upon Roman law,







modified by local customs; but judicial procedure nation of the New York procedure, that our present had become tolerably well-settled, and the history method of commencing actions in courts of record of its development during this period is not within is based upon the early Roman custom. the province of this sketch; but we cannot fail to

(Continuer in next issue.) observe that the administrative tribunals of the European barbarians were popular, as distinguished from the early Roinan system, in which the magis Abstracts of Recent Decisions. trate was the sole dispenser of justice. In these popular forms, founded not upon law, but

upon cus

ADMIRALTY-MARITIME tom anterior to the date of law, consisted the pro MATERIALS. - Persons having the entire possession verbial freedom of the Gothic people, which we of a vessel, under a contract of purchase, and using have received as an Anglo-Saxon inheritance. her for the transportation of merchandise and pas

Mr. Smith, in his essay on the “ Assize of Jeru- sengers, are to be regarded as her owners, so that salem,” says that it was the most important code of the port of their residence will be her home port, the Middle Ages; and that it was a body of laws com- notwithstanding that, by the contract of sale, title posed for the use of a new kingdom destitute of was not to pass until full payment of the purchase customary and traditional authority, full, minute money, and that the vessel was still enrolled at the and complete, defining every franchise and estab- port of the sellers. (The Shrewsbury, L. S. D. C. lishing by special enactment the nature and juris. [Obio], 69 Fed. Rep. 1017.) diction of the courts. He points out that it was


- A partly borrowed from Rome, partly founded on pre-maritime lien is waived by accepting notes or other scriptive society, and embodied in large part the securities extending the time of payment beyond the customs of France. It exhibits the manner in

time within which, by the general maritime law or which the personal laws introduced by Gothic con

by statute, the lienor is allowed to enforce the quests have become amalgamated with the civil law, lien. (The Nebraska, U. S. C. (. of App., 69 Fed. and shows the gradual assimilation of public law

Rep. 1009.) in France to the principles of Roman jurisprudence. It was compiled by Godfrey of Bouillon, first King CONSTITUTIONAL LAW-JURISDICTION OF FEDERAL of Jerusalem, after its conquest by the Crusaders,

- The equity of jurisdiction of the Federal at the beginning of the twelfth century. It em

courts cannot take cognizance of a suit by a braced a complete scheme for the administration of colored person, on behalf of himself and others justice, with judges and jury composed of twelve similarly situated, against the officers of the State men, substantially on the English model.

of which he and such others are citizens, to retain Arbitration in some form seems to bave been the such officers from acting under a statute of that earliest method of settling disputes, and was proba- State, claimed to violate Amend. Const. U. S., bly the basis of actual judicial procedure. Later, articles 14, 15, by abridging or denying his right to litigants attempted to settle controversies in their vote, since he has an adequate remedy at law. own way, and the State only interfered to keep the (Gowdy v. Green, U. S. C, C. (S. Car.], 69 Fed. peace. By a still later development the State Rep. 865.) assumed jurisdiction at the outset of a controversy, CRIMINAL PRACTICE-INDICTMENT— JOINDER by requiring its permission to begin a suit, and

OFFENSES. — Under Rev. St., § 1024, providing that there is a striking similarity in the practice in this

where there are several charges against a person respect in different nations widely separated, as the

for the same act, or for two or more acts connected Swedish Goths, the Greeks and the Hindus. In all

together, or for two or more acts of the same class these widely distant nations, almost at the dawn of

of crimes, which may be properly joined, the whole judicial history, the complainant was required to

may be joined in one indictment in separate counts, obtain the permission of the tribunal, by a sort

an indictment may contain a count under sectiou of ex parte motion, for leave to begin a suit, and he

5456 referring to the felonious taking away by any was obliged to satisfy the magistrates that he had a

one of anything belonging to the United States, just cause of action before the defendant could be

from any place, and a count under section 5460, resummoned or brought into court.

ferring to the felonious taking and embezzlement of “The King's writ,” or the summons under the the metals at the United States mint by a person to seal of the court in modern practice, is simply a whose charge they were committed ; and it is immodification of this early custom. By the law of material that one might be classed as larceny, and the Twelve Tables, the plaintiff himself summoned the other as embezzlement, or that the punishment the defendant, without invoking the aid or permis- is different. (United States v. Jones, U. S. D. C. sion of the court, and we shall find upon an exami- | (Nev.], 69 Fed. Rep. 973.)






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also raised whether the case was one of equitable Equity has jurisdiction of a bill brought by the cognizance, the court would take jurisdiction, and, United States, as trustee for the Indians to whom being of opinion that the case was not of equity lands have beeen allotted in severalty, pursuant to cognizance, would dissolve the injunction, and orthe treaties and acts of congress providing that the der the bill dismissed. (Green v. Mills, U. S. C. C. United States will hold the land so allotted in trust of App., 69 Fed. Rep. 852.) for the benefit of the allottees, against persons who


AUTHORITY TO SIGN have illegally secured leases of such lands and taken

NOTES. — The G Co., a manufacturing and trading possession thereof, – such bill seeking to oust such

corporation located in Ohio, had a branch in Misintruders, and to restrain them from inducing the souri, which was conducted by onc D, as general Indians to make further leases, and from interfering agent and manager, and at which

large business with the Indian agent in the performance of his was carried on, in the purchase and working up of duties,— since the remedy by action of ejectment,

raw material, and the sale of the finished product even if such action could be maintained, would be

over a large territory. D was left in full control of inadequate. (United States v. Flournoy Live Stock all departments of this business conducted in Mis& Real Estate Co., U. S. C. C. [Neb.], 69 Fed.

souri and managed all its affairs, financial and Rep. 886.

other, with the knowledge and consent of the offiEQUITY_JURISDICTION.—Complainant, the holder cers of the G Co., and generally without directions of a judgment against a drainage district of Illinois, or oversight by them. He reported to the G Co., recovered upon its bonds and coupons, brought from time to time, and some of his reports showed suit against the district and the commissioners and entries of “bills payable. Upon the trial of an treasurer thereof, alleging that the commissioners action against the G Co., upon notes signed in its had collected assessments, and failed to apply them name by D, as treasurer, the president of the G on complainant's judgment; that they had received Co., testified that he knew that D was signing all in payment of assessments coupons cut from bonds the bills payable made by the Missouri concern for held by parties who had consented to a compromise goods purchased ; that he supposed it was the agreement, and bought below par, and that the natural order of things for D to procure the discommissioners were chargeable with considerable count of bills receivable by indorsing them as sums collected, -this allegation being based on the

treasurer of the G Co.; and that, if money were retheory that coupons re-received for taxes were to be quired in an emergency, he supposed Dwould be treated as cash. The bill prayed that the commis- expected to make and procure the discount of the sioners be held personally responsible for taxes dis- company's notes. Held that D, being left in the charged under their direction, and enjoined from absolute control and management of the whole receiving anything but money for taxes: Ileld,

business of the G Co., in Missouri, to act on his that the bill should be dismissed, since, if there was

discretion, had authority to do whatever a reasonany personal liability of the commissioners, there ably prudent merchant or manufacturer would do, was an adequate remedy at law, and that, for the and accordingly, to sign promissory notes in the failure to collect the taxes in money, the remedy

name of the G. Co. (Glidden & Joy Varnish Co.of was mandamus. (Coquard v. Indian Grave Drain

Ohio v. Interstate Nat. Bank of Kansas City, U. S. age Dist., (U. S. C. C. of App.,] 59 Fed. Rep. 867.)

C. C. of App., 69 Fed. Rep. 912.)

The mere fact that the validity of a State

Where a case has been tried by the court upon wailaw under the constitution of the United States is ver of a jury, and the court has decided it, and made drawn in question will not, of itself, deprive the special findings covering the ultimate facts of the circuit court of appeals of jurisdiction to decide

case, additional findings cannot afterwards be made other questions involved in the case, although the upon the request of a party. (Lang v. Baxter, U. judiciary act of March 3, 1891, provides, in section

S. C. C. [Me.), 69 Fed. Rep. 905). 5, for direct appeals from the circuit to the Supreme TRUSTS

The act of July 2, 1890, Court, when constitutional questions are involved. to protect trade and commerce against unlawful reAnd, if it appears that the case may be disposed of strainst and monopolies, is not applicable to the case upon grounds independent of the constitutional of a State which, by its laws, assumes an entire monquestion, the court will take jurisdiction and discopoly of the traffic in intoxicating liquors (Act S.C. pose oi it accordingly : Held, therefore, that | Jan. 2, 1895). A State is neither a person where, on appeal from an interlocutory injunction, “corporation,” within the meaning of the act of it appeared that, while the bill challenged the con Congress. (Lowenstein v. Evens, U. S. C. C. [S. stutionality of a State law, the further question was I Car.], 69 Fed. Rep. 908).











nor a

The Albany Law Journal.

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pose of collecting a debt or satisfying a pecuniary demand, whatever may have been its ori

gin. As has been seen, there is nothing in ALBANY, DECEMBER 28, 1895.

President Monroe's declaration even remotely

touching this subject, and the examples I have Current Topics.

given of the employment of force by the United [All communications intended for the Editor should be ad- States, as well as by other powers, for such obdressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements

, subscriptions, or other jects show that the American republics have business matters, should be addressed to THE ALBANY LAW

not heretofore been supposed to enjoy so desirJOURNAL COMPANY.]

able an exemption. But I think I can trace E have devoted considerable space during the idea of its origin. In Wharton's "Interna

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Doctrine, which has been a subject of intense · Monroe Doctrine,' there is the following seninterest ever since the President's message to tence: “The government of the United States Congress. Whether the Monroe Doctrine forms would regard with grave anxiety an attempt on a part of international law or whether an al- the part of France to force by hostile pressure leged encroachment of territory by a foreign the payment by Venezuela of her debt to French nation violates its letter or its spirit are ques- citizens.' The authorities cited for this statetions which we consider have become merged ment are two alleged manuscript instructions of in the greater principle of international arbitra- Mr. Blaine to our minister to France, of July tion. Civilization has advanced too far to per- 23 and December 16, 1881. The whole matter mit resort to arms; the financial conditions is, however, erroneously stated. The instrucof the countries of the world are too ho- tions are both published in the volume of Formogeneous to allow to be the arbi- eign Relations for 1881. They refer not to ter of nations. In short, the dispute of hostile pressure, but to rumored design on the boundaries between English provinces and part of France of taking forcible possession of Venezuela is one which most properly be

some of tlie harbors and a portion of the terrilongs to a properly-constituted international tory of Venezuela in compensation for debts tribunal to consider and decide. The vague due to citizens of the French republic. They hints at resorting to arms, these bombastic har- nowhere express any 'grave anxiety. They do angues of the injudicious, will find their sud

not mention the Monroe Doctrine. They den deaths in the peaceful settlement of all merely argue that such a proceeding as that controversies by cool-headed, impartial

reported to be in contemplation would be unDogs delight to bark and bite, we

just to other creditors of Venezuela, including have found the missing link, and may learn at

the United States, since it would deprive them the same time that we have left with our alleged of a part of their security. And they express former kind many of their unpleasant peculiari- the solicitude of the government of the United ties.

States ‘for the higher object of averting hostiliSome eminent students of the law are con

ties between two republics, for each of which it tending for and against the Monroe Doctrine feels the most sincere friendship.' It is plain as a part of international law, and that the en that this latest development of the Monroe Doccroachment by a European power on territory trine, based upon the erroneous passage in of a country in this country is a violation of its Wharton's Digest, has no actual foundation spirit and its letter.

As a mere question of whatever.” principle, it is interesting, and Professor J. B. On this subject the New York Law Journal says: Moore, of Columbia College, in a pamphlet is

The preponderating influence of the Amerisued last May, said:

can Bar in framing legislation and directing “The suggestion has lately been made in va- public policy is generally recognized. We rious quarters that it is a violation of the Mon- | think that members of the legal profession roe Doctrine for a European power to employ should further feel a special responsibility in force against an American republic for the pur- | molding public opinion. The Venezuelan

VOL. 52 - No. 26.




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