e could be kept in bond sixty days. After a certain period a judgment debtor might be sold beyond the Tiber, or punished with death, and his creditors were permitted to cut out their several portions of his body. From this method of collecting judgments by execution against the person, there was a natural transition to execution by the sale of the "universal succession" of a debtor, and last of all i by the sale of particular pieces of property. When the Romans finally resorted to the property of the judgment debtor for the collection of the judgment, the practice was instituted, which has come down tinto our day, of taking first the personal property before resorting to the land, and the sale was conducted by officers of the court. the on The early Roman law contained no provision for costs; in the "sacramentum" each party deposited a "stake," which went, however, not to the winner, but to the State, to pay the expenses of the court, and it was only by a very slow development that the Romans arrived at a system which recognized the principle so familiar to us, that a person who makes an unjust claim, or resists a just claim, is regarded as inflicting a distinct wrong, and is bound to make compensation, the measure of which is well described by the term "costs." In A. D. 530, Justinian enacted that the defeated litigant should pay costs to the victor, according to established allowance, and if the judges neglected to impose costs they could be compelled to pay the costs themselves. Costs on In the early days the Roman magistrates were independent of each other, representing theoretically the sovereign power of the people; consequently there were no appeals from their judgments; but as the system developed, an appellate tribunal was provided, and appeals were allowed. appeal were in the discretion of the court. So much of the later Roman law has become a part of modern systems of jurisprudence, and is therefore so familiar to the modern lawyer, that it is unnecessary at this time to discuss other importaut features, such as evidence, equity, special proceedings, real and personal actions, and damages. The purpose of this sketch is to show the pioneer conditions of procedure, rather than law in its maturer form; and it is important to remember that the. Twelve Tables did not contain all the law, but that there was a body of customary law, in part unwritten, which was not abrogated, but was evaded or amplified by persons acting under the ideas of later times; "using, however, the Twelve Tables as a firm foundation for the structure of private law." In the great development of Roman law, from the Twelve Tables to the institutes of Justiuian (A. D. 533), there was a remarkable change in arrangement and classification. In the Twelve Tables procedure stands first, while in the Institutes it comes last. Substantive law takes precedence in the later classification, and the principle is recognized that procedure is only a means to an end. It is also worth while to rememoer that the Romans understood and applied the essential features of jury trial. There were "judges of the law" and also "judges of the facts, who answered to our jurors, and it was a fundamental principle of Roman law that no citizen could be condemned except upon the judgment of his fellow citizens, or his " peers." Trial by jury is not an institution of exclusively English origin. The essential principle of the jury, which involves the selection of judges unknown beforehand, from a particular body, with the power of deciding within certain limitations, and under the direction of certain rules, on questions of fact, is to be found in the institutions of many other countries already noted. It was a peculiar characteristic of the laws of the northern barbarians, and was the cornerstone of the Athenian constitution, whence it was probably borrowed by the Romans; and during the middle and later period of Roman law, the suitor was entitled to submit his cause to judges of the facts, drawn by lot from annual lists prepared for that purpose. The functions of the magistrate and of the judex were kept almost entirely apart. For many centuries the Senators alone were judges, but afterwards this power was transferred to the Knights. After a series of contests the right was shared by the two orders, and extended to persons even of inferior rank; so that the 300 of the Senatorial times had become 4,000 by the time of Augustus, Although several centuries later, this body quite strongly resembled the Greek dicastery, for which a list of 5,000 names was prepared, divided into ten sections. Cases involving the rights of foreigners were at first determined by a tribunal, composed of three or more persons, called recuperatores," acting as jurors, which at a later period had jurisdiction in cases between citizens. We possess very little reliable knowledge of the laws and customs of the ancient Britons. The conquest of Britain by the Romans about 55 B. C. and their occupancy for five centuries, necessarily im pressed the Roman system upon the early institutions of that country, notwithstanding the general rule of Roman policy to leave the legal systems of conquered nations undisturbed as far as practicable - imposing only such part of Roman law as the exigencies of government might seem to demand but the presence of a superior civilization in early Britain could hardly fail to have its effect in modifying legal institutions. This effect was not wholly destroyed by the later Danish and Saxon invasions. Traditional laws naturally suffer insensible variations in practice, so that while it is easier to discover the differences between an ancient and a modern usage, it is impossible, as Sir William Blackstone points out, to define the precise time at which the alteration accrued before the period of written law. weeks. The great tribunal among the Saxons for civil business was the county court, held once every four Here the sheriff presided, but the suitors of the court, as they were called, that is, freemen or landowners of the county, were the judges, and the sheriff was to execute the judgment, assisted, if need be, by the bishop. "In this county court the people formed a sort of tribunal composed of the neighbors, who heard the testimony of the witnesses and settled the disputes among themselves by discussion, or perhaps by acclamation, somewhat like the Athenian dicasteries, without any form of regular justice or the rules of a legal tribunal. It was a mere rough arbitration by the neighbors, and gradually gave place to a more orderly system." The Saxons introduced into early English institutions a spirit of freedom and equity that has never wholly departed from them. We derived from these barbarians a spirit of freedom, infusing life and vigor and energy into all their institutions, and their broad principles of popular government and especially their popular courts, cultivated a spirit of freedom which was the foundation of our modern institutions. As originally organized, the only jurisdiction the king had in the county court was to issue a writ, requiring the sheriff to hear the case; and the king took no other part in the administration of the law. The first step in improvement was the appointment by the crown of a special justiciary to hold the county court. By a later development all judicial proceedings were commenced by the "King's writ." This grew out of the idea that the king was the source and fountain of justice, and was perhaps a direct result of the feudal system, by which the king was recognized as the paramount lord, and he had sole authority to appoint judges, who acted in his place in the administration of justice. Out of this practice, and from this theory, developed the notion of sovereign or superior tribunals, to which ap peals could be brought from inferior courts. An examination of the English system of trial by jury shows that jurors were at first witnesses, and that the development of the system to its present condition was very slow. No one was competent to sit as a juror, unless he had some knowledge of the facts, and if upon being summoned the jurors made oath that they had no such knowledge, they were rejected and others were summoned in their places and it took centuries to develop the idea of trying questions of fact before a jury upon evidence, and before men who knew nothing of the facts, but decided the controversy upon the testimony of witnesses; and yet trial by jury involves the essential duty of "deciding upon contradictory testimony and discriminating the balance of credibility." The old practice of arbitration, originating with the Saxon county court, was still retained, even after The old rule of trial by jury was well established. trying cases before a jury from the vicinage," has come down to us, and is so firmly established that it is not likely to be soon disturbed, for it is based upon the familiar principle that the matter in dispute should be tried where it arose, by neighbors of the parties, with such knowledge of them and of the subject matter as might either assist them in forming a correct judgment, or serve to test the credibility of the witnesses brought before them. The popular character of the administration of justice among the Goths was particularly noticeable in the early Swedish tribunals. The defendant had five days from the summons to the trial, and on the fifth day the complainant and defendant met at the village assembly, which was held in the open air, and before the trial commenced each party "abjured all falsehood and deceit." Afterwards this simple system gave way to a more regular and technical form, and the country was divided into districts, in each of which was appointed a law-man" and a jury of twelve men. The early Irish or Brehon law illustrates the weakness of the State, and the imperfect conception of its authority in matters of private litigation, already noted. The complainant seized the property of the defendant by a violent "distress," and the judicial power was exercised to compel the defendant to give satisfaction to the complainant as a condition of receiving the aid of the court in restoring his property. The aid of the court was invoked, not to begin the litigation, but to settle & quarrel already going on. We also find here a custom, which was still more firmly established among the Hindus, of invoking the aid of religion to compel debtors to discharge their obligations. This was only another form of "Distress.' Many codes were adopted during the Middle Ages, several of which were based upon Roman law, nation of the New York procedure, that our present method of commencing actions in courts of record is based upon the early Roman custom. (Continued in next issue.) Abstracts of Recent Decisions. AND ADMIRALTY-MARITIME LIENS-SUPPLIES MATERIALS.—Persons having the entire possession of a vessel, under a contract of purchase, and using her for the transportation of merchandise and pas modified by local customs; but judicial procedure had become tolerably well-settled, and the history of its development during this period is not within the province of this sketch; but we cannot fail to observe that the administrative tribunals of the European barbarians were popular, as distinguished from the early Roman system, in which the magistrate was the sole dispenser of justice. In these popular forms, founded not upon law, but upon custom anterior to the date of law, consisted the proverbial freedom of the Gothic people, which we have received as an Anglo-Saxon inheritance. 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, U. S. D. C. lishing by special enactment the nature and juris- | [Ohio], 69 Fed. Rep. 1017.) diction of the courts. He points out that it was 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 customs of France. It exhibits the manner in which the personal laws introduced by Gothic conquests have become amalgamated with the civil law, and shows the gradual assimilation of public law in France to the principles of Roman jurisprudence. It was compiled by Godfrey of Bouillon, first King of Jerusalem, after its conquest by the Crusaders, at the beginning of the twelfth century. It embraced a complete scheme for the administration of justice, with judges and jury composed of twelve men, substantially on the English model. Arbitration in some form seems to have been the earliest method of settling disputes, and was probably the basis of actual judicial procedure. Later, litigants attempted to settle controversies in their own way, and the State only interfered to keep the| peace. By a still later development the State assumed jurisdiction at the outset of a controversy, by requiring its permission to begin a suit, and there is a striking similarity in the practice in this respect in different nations widely separated, as the Swedish Goths, the Greeks and the Hindus. In all these widely distant nations, almost at the dawn of judicial history, the complainant was required to obtain the permission of the tribunal, by a sort of ex parte motion, for leave to begin a suit, and he was obliged to satisfy the magistrates that he had a just cause of action before the defendant could be summoned or brought into court. "The King's writ," or the summons under the seal of the court in modern practice, is simply a modification of this early custom. By the law of the Twelve Tables, the plaintiff himself summoned the defendant, without invoking the aid or permission of the court, and we shall find upon an exami ADMIRALTY MARITIME LIENS WAIVER. A securities extending the time of payment beyond the time within which, by the general maritime law or by statute, the lienor is allowed to enforce the lien. (The Nebraska, U. S. C. C. of App., 69 Fed. Rep. 1009.) CONSTITUTIONAL LAW-JURISDICTION OF FEDERAL COURTS.- The equity of jurisdiction of the Federal courts cannot take cognizance of a suit by a colored person, on behalf of himself and others similarly situated, against the officers of the State of which he and such others are citizens, to retain such officers from acting under a statute of that State, claimed to violate Amend. Const. U. S., articles 14, 15, by abridging or denying his right to vote, since he has an adequate remedy at law. (Gowdy v. Green, U. S. C. C. [S. Car.], 69 Fed. Rep. 865.) OF CRIMINAL PRACTICE-INDICTMENT-JOINDER OFFENSES. Under Rev. St., § 1024, providing that where there are several charges against a person for the same act, or for two or more acts connected together, or for two or more acts of the same class JURISDICTION PUBLIC LAND. EQUITY Equity has jurisdiction of a bill brought by the United States, as trustee for the Indians to whom lands have beeen allotted in severalty, pursuant to the treaties and acts of congress providing that the United States will hold the land so allotted in trust for the benefit of the allottees, against persons who have illegally secured leases of such lands and taken possession thereof, such bill seeking to oust such intruders, and to restrain them from inducing the Indians to make further leases, and from interfering with the Indian agent in the performance of his duties,- since the remedy by action of ejectment, even if such action could be maintained, would be inadequate. (United States v. Flournoy Live Stock & Real Estate Co., U. S. C. C. [Neb.], 69 Fed. Rep. 886. Held, also raised whether the case was one of equitable cognizance, the court would take jurisdiction, and, being of opinion that the case was not of equity cognizance, would dissolve the injunction, and order the bill dismissed. (Green v. Mills, U. S. C. C. of App., 69 Fed. Rep. 852.) AUTHORITY TO SIGN PRINCIPAL AND AGENT NOTES. The G Co., a manufacturing and trading corporation located in Ohio, had a branch in Missouri, which was conducted by onc D, as general agent and manager, and at which a large business was carried on, in the purchase and working up of raw material, and the sale of the finished product over a large territory. D was left in full control of all departments of this business conducted in Missouri and managed all its affairs, financial and other, with the knowledge and consent of the officers of the G Co., aud generally without directions or oversight by them. He reported to the G Co., from time to time, and some of his reports showed entries of "bills payable. Upon the trial of an action against the G Co., upon notes signed in its name by D, as treasurer, the president of the G Co., testified that he knew that D was signing all the bills payable made by the Missouri concern for goods purchased; that he supposed it was the natural order of things for D to procure the discount of bills receivable by indorsing them as treasurer of the G Co.; and that, if money were required in an emergency, he supposed D would be expected to make and procure the discount of the company's notes. Held that D, being left in the absolute control and management of the whole business of the G Co., in Missouri, to act on his discretion, had authority to do whatever a reasonably prudent merchant or manufacturer would do, and accordingly, to sign promissory notes in the name of the G. Co. (Glidden & Joy Varnish Co. of Ohio v. Interstate Nat. Bank of Kansas City, U. S. C. C. of App., 69 Fed. Rep. 912.) EQUITY-JURISDICTION.-Complainant, the holder of a judgment against a drainage district of Illinois, recovered upon its bonds and coupons, brought suit against the district and the commissioners and treasurer thereof, alleging that the commissioners had collected assessments, and failed to apply them on complainant's judgment; that they had received in payment of assessments coupons cut from bonds held by parties who had consented to a compromise agreement, and bought below par, and that the commissioners were chargeable with considerable sums collected,-this allegation being based on the theory that coupons re-received for taxes were to be treated as cash. The bill prayed that the commissioners be held personally responsible for taxes discharged under their direction, and enjoined from receiving anything but money for taxes: that the bill should be dismissed, since, if there was any personal liability of the commissioners, there was an adequate remedy at law, and that, for the failure to collect the taxes in money, the remedy was mandamus. (Coquard v. Indian Grave Drainage Dist., [U. S. C. C. of App.,] 59 Fed. Rep. 867.) FEDERAL PEALS.- The mere fact that the validity of a State law under the constitution of the United States is drawn in question will not, of itself, deprive the circuit court of appeals of jurisdiction to decide other questions involved in the case, although the judiciary act of March 3, 1891, provides, in section 5, for direct appeals from the circuit to the Supreme TRUSTS MONOPOLIES. 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 dis-opoly of the traffic in intoxicating liquors (Act S. C. pose of it accordingly: Held, therefore, that Jan. 2, 1895). A State is neither a person nor & where, on appeal from an interlocutory injunction,"corporation," within the meaning of the act of it appeared that, while the bill challenged the cou- Congress. (Lowenstein v. Evens, U. S. C. C. [S. stutionality of a State law, the further question was Car.], 69 Fed. Rep. 908). COURTS CIRCUIT COURT OF AP COURT - ADDITIONAL FINDINGS. TRIAL BY Where a case has been tried by the court upon waiver of a jury, and the court has decided it, and made special findings covering the ultimate facts of the case, additional findings cannot afterwards be made upon the request of a party. (Lang v. Baxter, U. S. C. C. [Me.], 69 Fed. Rep. 905). The Albany Law Journal. ALBANY, DECEMBER 28, 1895. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] pose of collecting a debt or satisfying a pecuniary demand, whatever may have been its origin. As has been seen, there is nothing in President Monroe's declaration even remotely touching this subject, and the examples I have given of the employment of force by the United States, as well as by other powers, for such objects show that the American republics have not heretofore been supposed to enjoy so desirable an exemption. But I think I can trace E have devoted considerable space during the idea of its origin. In Wharton's 'Interna Doctrine, which has been a subject of intense interest ever since the President's message to Congress. Whether the Monroe Doctrine forms a part of international law or whether an alleged encroachment of territory by a foreign nation violates its letter or its spirit are questions which we consider have become merged in the greater principle of international arbitration. Civilization has advanced too far to permit resort to arms; the financial conditions of the countries of the world are too homogeneous to allow war to be the arbiter of nations. In short, the dispute of boundaries between English provinces and Venezuela is one which most properly belongs to a properly-constituted international tribunal to consider and decide. The vague hints at resorting to arms, these bombastic harangues of the injudicious, will find their sudden deaths in the peaceful settlement of all controversies by a cool-headed, impartial court. Dogs delight to bark and bite, we have found the missing link, and may learn at the same time that we have left with our alleged former kind many of their unpleasant peculiarities. Some eminent students of the law are contending for and against the Monroe Doctrine as a part of international law, and that the encroachment by a European power on territory of a country in this country is a violation of its spirit and its letter. As a mere question of principle, it is interesting, and Professor J. B. Moore, of Columbia College, in a pamphlet issued last May, said: "The suggestion has lately been made in various quarters that it is a violation of the Monroe Doctrine for a European power to employ force against an American republic for the purVOL. 52 No. 26. 6 entitled Monroe Doctrine,' there is the following sentence: The government of the United States would regard with grave anxiety an attempt on the part of France to force by hostile pressure the payment by Venezuela of her debt to French citizens.' The authorities cited for this statement are two alleged manuscript instructions of Mr. Blaine to our minister to France, of July 23 and December 16, 1881. The whole matter is, however, erroneously stated. The instructions are both published in the volume of Foreign Relations for 1881. They refer not to hostile pressure,' but to rumored design on the part of France of taking forcible possession of some of the harbors and a portion of the territory of Venezuela in compensation for debts due to citizens of the French republic. They nowhere express any 'grave anxiety.' They do not mention the Monroe Doctrine. They merely argue that such a proceeding as that reported to be in contemplation would be unjust to other creditors of Venezuela, including the United States, since it would deprive them of a part of their security. And they express the solicitude of the government of the United States for the higher object of averting hostilities between two republics, for each of which it feels the most sincere friendship.' It is plain. that this latest development of the Monroe Doctrine, based upon the erroneous passage in Wharton's Digest, has no actual foundation |