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stantially in force to this day; though the rules relating to the administration of the estates of deceased persons have been altered by many statutes.

In the law of real property, on the other hand, changes of enormous importance have been made during the century.

In conveyancing, too, the changes have been equally startling. In 1800 no man could convey to another freehold land in possession by a simple deed. Such land did not lie in grant. Either the purchaser and the vendor had to visit the spot and go through the elaborate ceremony of a feoffment with livery of seisin; or, what was more usual, the parties had recourse to the device of creating an unnecessary tenancy by means of a Lease and then supplementing it by a subsequent Release-two deeds and double the cost. An end was put to this in 1845. Fines and recoveries were abolished in 1833. Since then title-deeds themselves have been so shortened and simplified by the Conveyancing Acts that they no longer deserve Lord Westbury's severe censure. You remember that he spoke of title deeds as being "difficult to read, impossible to understand, and disgusting to touch."

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In 1800 there was no such thing as an ordinary limited liability company. There were a few trading companies each incorporated by its own private Act of Parliament. But apart from these, every trading concern in which more than one man was interested was just a common law partnership, and each partner was personally liable for the whole of the debts of the firm. Now any one can take as many shares as he likes in a limited liability company, and as soon as he has paid for his shares in full he is free from all further liability to the creditors of the company. Whether the change was a good one or a bad one, it is hard to say. It has no doubt greatly encouraged and facilitated commercial enterprise; it has carried British capital into every corner of the inhabited globe.

There was no Bankruptcy Court in 1800. Bankruptcy was originally regarded as a crime; in the earliest Bankruptcy Acts the bankrupt is always alluded to as "the offender." But before 1800 bankruptcy had come to be regarded as the proper remedy for traders in embarrassed circumstances. But this relief was limited to "traders"; no one else could avail himself of the Bankruptcy Laws.

A private gentleman, an attorney, a solicitor, a stock-broker, a farmer, or a grazier, was not a trader, nor was any labourer or workman. If any of these persons conld not pay his just debts, he had to rot in the Marshalsea or the Fleet till his friends or relatives took pity on him and found the money. This was then the deliberate policy of our law, that if a man was hopelessly in debt he must be locked up and deprived of all chance of earning any money with which to pay his creditors! The creditor seized his body in satisfaction of the debt. This is the state of things which Dickens so powerfully describes in Pickwick and in Little Dorrit. Nor does he exaggerate in the least. You can learn a great deal of law from Dickens' novels. And remember that he was a student of the Middle Temple, though he was never called to the Bar.

The first step for the relief of these insolvent debtors was taken, in 1808; when an Act was passed exempting from imprisonment in certain cases judgment debtors who had been taken in execution for any debt or damages not exceeding £20, exclusive of costs. statutes followed in 1844, 1845, and 1846.


And there was no Divorce Court in 1800. At the commencement of the century, the marriage bond could be severed by nothing less than an Act of Parliament. That is still, I believe the law of Ireland, which is still without a Divorce Court. And before asking for an Act of Parliament, the injured husband was required, first, to sue the adulterer at law and obtain a verdict against him for damages, and then to take proceedings in an Ecclesiastical Court for a decree of divorce a mensa et thoro. When he had succeeded in these two Courts, he might commence his application to Parliament. In other words, only a very wealthy man could obtain a divorce in England in 1800.

Next to lunatics, our polite text-book writers always place married women! And great indeed are the changes that have been Imade in this branch of our law. In 1800 a married woman had scarcely any rights; she could make no contracts, acquire no personal property, and all her earnings belonged to her husband. Such at least was the rule at law. In equity it was possible for a woman to have a marriage settlement executed before marriage, and thus preserve her property to her sole and separate use. The first few years of the new century witnessed two decisions which es

tablished for the first time the right of a married woman who had married without a settlement to have some portion of her own personal property settled upon herself and her children. Now at wife is in a position of almost complete equality with her husband. An entire change has been introduced by the Married Women's Property Acts of 1870, 1874, 1882, and 1893. A married woman now can make a contract with referenec to her separate property just as though she were unmarried; she can sell it or dispose of it by will; her earnings are her own.

NOTE. In addition to Jeremy Bentham (1748-1835), the following names deserve to be remembered in connection with the Reform Movement:

Sir Samuel Romilly (1757-1818) was Solicitor General in 1806. He sat in Parliament from that date till his death and devoted himself to reform of Criminal Law.

Henry Brougham, afterwards Lord Brougham and Vaux (1778– 1868), after a brilliant career at the bar, became Chancellor in 1830, holding that office four years. Sitting in the House of Commons from 1815 to 1830, he was one of the most effective and energetic of the champions of Law Reform.

Henry Bickersteth, afterwards Lord Langdale (1783-1851), was called to the bar in 1811, and became Master of the Rolls in 1835. Bentham said of him, "Of all my friends Bickersteth was the most cordial to Law Reform to its utmost extent."

David Dudley Field (1805-1894), the foremost advocate of Law Reform in America, was admitted to the bar in New York in 1828 and began to write upon Reform of Procedure in 1839. In 1847 the legislature of New York appointed him upon the commission which prepared the Code of Civil Procedure in which he took a leading part. Codes based upon it are now in force in twentyseven states. In 1857 he was placed at the head of a new commission which prepared three codes, a political code (nublic law), a civil code (private law), and a penal code. Ten states have adopted the last, and California has adopted the three. These codes were also adopted by the territory of Dakota, and are in force in North Dakota and South Dakota.




The expression source of law (fons juris) has several meanings which it is necessary to distinguish clearly. We must distinguish in the first place between the formal and the material sources of the law. A formal source is that from which a rule of law derives its force and validity. It is that from which the authority of the law proceeds. The material sources, on the other hand, are those from which is derived the matter, not the validity of the law. The material source supplies the substance of the rule to which the formal source gives the force and nature of law.

The formal source of the whole body of the civil law is one and the same, namely the will and power of the state as manifested in courts of justice. Whatever rules have the sanction and authority of the body politic in the administration of justice have thereby the force of law; and in such force no other rules whatever have any share. The matter of the law may be drawn from all kinds of material sources, but for its legal validity it must look to the tribunals of the state and to them alone. Customary law, for example, has its material source in the usages of those who are subject to it; but it has its formal source in the will of the state, no less than statutory law itself.

We may conveniently distinguish the two ideas by the terms "sources of law" and "forms of law." By sources of law, we refer to the methods and agencies by which ruies of law are formulated; by forms of law, we refer to the modes in which the rules are expressed, the literary shapes they assume.

In the common-law system there are three forms of law:

(1) LEGISLATION, under which, using the term in its wider sense, we have in America three varieties:

i. constitutions.

ii. federal treaties.

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(2) JUDICIAL DECISIONS. The decisions of the superior courts in England and their analogues in other common-law jurisdictions.




The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the ler non scripta, the unwritten, or common law; and the lex scripta, the written, or statute_law.

The ler non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.

When I call these parts of our law leges non scriptae, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that in the profound ignorance. of letters, which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, because the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic Druids committed all their laws as well as learning to memory; and it is said of the primitive Saxons here, as well as their brethern on the continent, that leges sola memoria et usu retinebant. But, with us at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However, I therefore style these parts of our law leges non scriptae, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.


Let us next proceed to the leges scriptae, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king's majesty, by and with the advice and consent of the lords spiritua! and temporal, and commons in parliament assembled. The oldest

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