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The record is completed so far as is necessary to sketch this general outline by a reference to the labors of Sir Henry Maine. His investigations are of an entirely different turn and character from those of Bentham and Austin. He approached legal facts and phenomena from another side-from the side of history. We have heard much in the last quarter of a century of the comparative method, and the rich stores its employment has added to our knowledge of religions, languages, and institutions. The distinction of Sir Henry Maine is that he has applied that method with true genius to the explanation of legal ideas and facts, their origin and history. The law of to-day is the law of yesterday modified by changed social conditions, and so it is backwards to the beginning. This is true of all peoples and societies. Obviously then a comparison of the legal experiences of different peoples in different stages of civilization will disclose the similarities and variations which exist with their underlying causes, and they are the bases of all scientific induction. This line of inquiry, which is but an extension of the comparative method, Sir Henry Maine has pursued far and wide, and with such success that the main streams of legal evolution have been ascertained, and their relations with the connected phenomena and conditions of society estab lished. In fact, the results of these inquiries reach beyond this, for their significance and extent has constituted them a material part of the evidence which has been accumulating, that civilization is an unfolding process, with a natural and ascertainable sequence among its various steps.
With these investigators of the highest order of capacity, originality and insight, I might put others, perhaps not so eminent, still able and effective, notably our own Oliver Wendell Holmes, Jr., who ranks, if not with them, yet so close to them that he is virtually their peer; but I must not linger. A statement of the present state of the science with sufficient detail to make it a fair reflection is far beyond my present undertaking. I have sought only to indicate the outlines of the chief work that has been done; the work upon which the verdict of the future will be founded. Of the tenor of that verdict there can be no doubt. An adequate conception of a true legal science has been attained, and its foundations laid deep and strong. These achievements need shrink from no comparison. They are a crowning triumph of this age and time, and they place it in an indisputable supremacy.
I turn now to review the situation as it is, in what I have termed the practical department, and to ascertain if in that direction we have manifested power, skill and a sensitive intelligence. This we can best do by fixing upon the standard which should be the measure of our possible attainment, and holding up to it the actual condition of affairs. If we can determine what are the prevailing tendencies of a deep and controlling nature in the making and administration of law, this standard must be the conditions which would exist if those tendencies were fully realized, and the changes and readjustments they involve completely made. Our main inquiry then is to seek out these tendencies and the readjustments naturally incident to them.
One of the interesting facts brought to light by the investigations of Sir Henry Maine is that in the infancy of society courts of justice and legal proceedings are the pivots on which all there is of law turns. The first subject dealt with in the Decemviral Tables-the earliest body of written Roman law-is the first steps in a judicial proceeding, and the same is true of the earliest bodies of Teutonic, Celtic, and Hindoo written law. The prominence thus given to courts, and the proceedings which went on in them, was natural
in a time when as Sir Henry Maine says, "they stood before all men's sight as the alternative to forcible reprisals, and as the avenger of their victim; " but the persistence of this fact-the vast and controlling importance of procedure-far into civilized times has a more intricate cause. Let us see what light the history of English law throws upon it.
Until comparatively recent times, the way in which law was made and enunciated was almost entirely through the decision of cases. The notion long current that somewhere there was a body of existing law, which judges were only declaring and applying, was humourously false. The fact was, that the judges made the law in their adjudication of the cases brought before them. Each case, if it involved any thing new, became a precedent, and precedents were the repository of the law. If there were no precedent to fit a case, the decision rendered really expressed the judge's notion of what the law ought to be, though this would not, perhaps, have been explicitly admitted.
Such a decision, no matter what the guise adopted, was in fact the creation of a new rule of law, and the accumulation of such decisions was the process by which by far the greater part of both the common law and equity law was brought into existence. This fact, simple as it is, has had a potent influence in many directions on English law. One of its consequences touches deeply the subject we are upon.
When judges made the law through the medium of cases, naturally judicial proceedings drew to themselves paramount consideration. They had a dramatic interest and effect aside from any distinct consciousness of their share in the actual process of law-making. They occupied a large place in the prevailing conception of law and justice. They were the sole means of ascertaining what the law was, and of declaring the rights of parties. Rights and duties were only dimly conceived of as having an independence of them, or any possible existence without them. Inevitably the human mind, prone as it is to be drawn to what it sees going on before it in a concrete form, exalted the office and importance of procedure. So in early times it was placed first in the Codes of written law, aud down to far later times it was still the centre and object of legal attention and skill. To this fact is in large part due the common-law system of pleading and procedure; a system founded on the idea that procedure was a matter of essence and the guardian of justice. So also to it was due in no small measure the long and despotic rule of the common-law Forms of Action, Debt, Trespass, and the like, the requirements of which an injury had to fit or go unredressed. Thus we see the conditions in which originated the immense ascendency of procedure, and which were necessary to its maintenance.
Let us now advance a step. With the rise of the chancellors' court, a new influence was set in motion in English law. After passing a certain point of development the common law gradually became rigid and unyielding to the needs and conceptions of an advancing civilization. Its restricted forms of action and its exclusive remedy of damages stood as a barrier obstructing the movement and expansion of society, until a new channel of legal communication was opened up. This new channel was equity. By the side of the old law and the old courts there grew a body of new law administered by a different set of courts. The new law at many points supplemented the old; at others it superseded it; it was pliant, expansive, copious; and it asserted itself with immeuse activity. It introduced a new principle of legal growth. How luxuriant that growth was whilst Equity was in its vigor any one may see by looking
over the titles of Mr. Pomeroy's great work on Equity Jurisprudence recently published.
The era of equity was still an era of judge-made law; but there were new elements in play, which wrought decisive changes. For instance, procedure was liberalized; pleadings came into vogue which were free and natural, instead of strained and technical; practice was moulded to the changing necessities of a litigation; and above all, remedies were adapted to the emergencies of each case. These were all points of advantage of the new system over the old, altogether apart from any difference in the intrinsic quality of equity as compared with the common law. They have a deep significance, for evidently there were influences at work drawing the legal mind toward a more truly proportioned appreciation of the office of procedure, and setting out in clearer distinction the rights and duties which it is the object, of law to define and guard, and the mere machinery of their enforcement.
It would be a difficult task to give a complete explanation of these tendencies of Equity; but the main fact in any such explanation may be readily seized upon. We know it to be an indisputable fact that equity openly avowed its aim and purpose of equity to supplement and supersede the common law in the advancement of a higher conception of justice and right. It distinctly asserted the superiority of its rules and principles, and constantly enlarged its sphere of action on the strength of this claim. Thus it was the source not only of new law; but of new law of an explicitly recognized higher type. This high claim of equity must have impressed itself upon the legal mind, and led it by degrees to the direct contemplation of legal rights and duties in their relations to their real grounds, dissociated from every thing else. It fixed attention upon them, and tended to emphasize them as the main consideration. In other words, whilst the tendency in the common-law era was to lay stress on the legal action, its essentials and requirements, the tendency in the equity era was more and more to lay stress on the rights and duties of parties, their essentials and requirements; and the moment this latter tendency set in, procedure dwindled in importance.
Equity had its time of robust energy and expansion, and then it waned. In making for the liberation of the idea of rights and duties from a false identification with the machinery for their enforcement, it laid an axe at its own roots. This liberation was immensely accelerated if not completed by the analysis of Bentham and Austin. The effect of it, united with the ripening ideas of popular government, was to start gradually into systematic operation a law-making power, more efficient because more direct and comprehensive in its action. This was legislation. Long intermittent only in its law-making, it was by degrees stimulated by a number of co-operating causes, to take upon itself this most legitimate of its functions, until finally it has assumed it to the practical exclusion of all other agencies. Judges have ceased to make law, with rare exceptions; as they often tell us, and sometimes inconveniently, their sole duty is to declare it. The well-spring of equity is dry. Legislation has taken their place, and it is a vast engine of unlimited and unrestrained capacity. In this fact we have the deepest and most far-reaching legal tendency at the present time. It overshadows all others; it is the dominant influence; conformity to it, with all the readjustments that it involves is the necessary requirement, if there is to be harmony and order in the coexistent legal system. It witnesses in full play the separation of the conception of legal rights and duties from the fact of procedure; the essence from the machinery; substantive law from adjective law. It responds to the behests of reason by authentically
stating the rules of human right and duty in a rational and coherent form. And observe how the revolutions of time have reversed the order of things and the legal action with its connected apparatus, which stood at the front in the infancy of society, is now simply an adjunct. It is a sweeping change; but it has been gradual and unbroken, and its incidents are imbedded in the history of English law. The last and most significant phases of it are still quite recent, and it remains for us to see whether the readjustments which should follow them are yet made, in whole or in part, or their necessity even realized.
The question arises, what are those readjustments? I say firstly, the utmost simplification of procedure, and secondly, the re-expression of the entire body of the law to secure unity of form and a fair maintenance of that unity. Enough has been said about the tendency of procedure to simplicity and naturalness, and surely no argument is necessary in favor of the desirableness of zealously conforming to it and carrying it into execution. But the other need-that of the re-statement of the law in statutory form-is in grave controversy and the battle is not yet decided. It is the old struggle between innovation and conservatism, always more a matter of temperament than logic. The ordinary arguments ou both sides are wellthreshed straw, and it would be vain to once more set them up against each other. If any new light is to be shed on the subject that is to win both feeling and conviction to the same side, it must be from an altered point of view. We know that the victory will eventually be with the right reason of the matter, but it may be long and injuriously deferred. Can we not lift ourselves out of the clouds of disputation and search for this right reason of the matter, with the single desire to find it? If we were to do this there would soon be but one persuasion one way or the other. Assuming that attitude we should face these questions: Is it reasonable to have one large section of the law scattered through thousands of volumes of reports, so that it has to be gathered from them by a difficult and laborious process of sifting relevant from irrelevant facts, and actual grounds of decision, which are evidence of the law from general disquisitions, which are not? Is it reasonable that one part of the law should be in that shape, and the remaining part supplementing and modifying the other in the form of detached statutes, incomplete in themselves by reason of being supplementary or amendatory? Is it reasonable that law which affects every member of society should be largely inaccessible because nowhere authentically stated in the form of rules? Is it consistent with the spirit of an era of legislation to resist its extension to the improvement of the form of that part of the law which has to be constantly detached from the confusion of decided cases? Does not the right reason of the matter stand out quite clearly if this is a correct statement of the points of dispute? Is it not that every part of the law should be authoritatively expressed in the form of definite rules, and the whole arranged in a system according to the most logical principles of legal classification? If the present unstatutory part of the common and equity law did as a result lose its elasticity that is no defect when legislation is the process of law-making in vogue. When judges were making the law through actual decisions, restricted to particular facts, and thus unfitted for the enunciation of general principles, it would have been highly disastrous to encrust the rulings of those decisions at any time in an inflexible form. It was necessary when those conditions existed that these rulings should be nnconfined and elastic, for they were but the germs and seeds in which lay all the possibilities of legal growth. But now that the law no longer grows in that way, or from such germs, and that all of
it which has so grown in the past is fixed and stationary, this elasticity is of far less importance than the. definiteness and precision which would be attained by a re-statement of the entire mass of judge-made law in the form of rules. There is really no room for controversy if the true conditions of the problem were resolutely forced and all irrelevancies excluded.
With these essentials to the perfecting of the law as a practical art before us, I ask again the question I put at the outstart. What is the measure of our achieve
ment? Let us glance first at procedure. The ideal ACTION to recover the value of certain wheat. The
facts were these: One Cyrus Allison owned a farm which he leased on shares to his son. One Meales, who held a judgment against said Cyrus Allison, issued an execution thereon, under which a levy was made upon wheat growing upon the farm, and the interest therein of Cyrus Allison was sold to the plaintiff below, Jacob Seavers. Thereafter under an execution upon another judgment the farm was sold to one Long. The grain was harvested by the tenant and delivered to defendant below, Ira L. Long, and other persons. This action was brought to recover the value of the wheat delivered. A verdict was rendered for the plaintiff below, and defendants took a writ of error to review the judgment thereon.
would be on the lines laid down, a brief precedure act delineating the main features of the various legal proceedings, leaving the details to be supplied in rules of practice drawn up by the judges. Amongst these rules should be one to be sacredly observed to the effect that every error or mistake as to matters of practice covered by rules should be disregarded if no injustice were done. On this plan the essentials of procedure would be matters of strict rule, and the details invariably under control and unobstructive. If this be a true ideal I leave it to you whether we are making toward it, or even an intelligent perception of it. Our own code of procedure laying hold of every detail of practice and thus making its observance absolute, is direct evidence to the contrary. It has erected procedure into a vast and complicated system which has to be traversed without serious deviation to reach the seat of justice. It entirely lacks the flexibility which rules would have and which must pervade procedure if it is not to be an unwarranted and illogical obstruction. The condition of things which prevails in other States may be subjected to the same or equally valid criticism on other grounds. Nowhere in this country that I know of, is there a consistent effort being made to mould the existing system of practice to the true theory of the office of procedure. England alone, so far as my knowledge extends, has seen the true course and taken steps to follow it.
John Hayes, for plaintiffs in error.
J. A. C. McCune, for defendant in error.
Glancing now at the form in which the law is expressed, the view is blacker still. The ideal on the same lines would be a complete codification of the law with periodical revision by experts to incorporate the new with the old. The original codification should be on a plan radical enough to permit of whatever changes of substance are necessary to bring the body of the law into correspondence with existing ideas, needs and conditions. On the other hand, subsequent revisions when required should be revisions pure and simple, reaching only to matters of form, and securing order, arrangement and clearness. In this way the voice of the Legislature, as to what the law should be would always be supreme and revision would do away with the defects of form in legislation incident to its conduct by a mixed body. Judged by any such ideal it is chaos which exists. Our system of law is a wilderness enshrouded in the darkest of night. Case law and statute law stand together unblended and in the greatest confusion. It has neither plan nor coherency in any part of it. The keenest eye is not sure of its way.
GREEN, J. It is true that grain growing in the ground is personal property, and may be seized and sold upon execution. Hershey v. Metzgar, 9 Norr. 218. But that proposition in its generality relates to the interest in the grain of the person in possession. Where land is leased by the owner to a tenant upon shares, the landlord is entitled to his share of the grain when it is harvested. Lamberton v. Stouffer, 5 P. F. Smith, 284. Before that the landlord cannot enter upon the laud demised to take his share, or do any other act inconsistent with the tenant's right of possession. Under the act of June 16, 1836 (Hurd. 663, pl. 149), it is undoubted that the purchaser of the landlord's title under execution against him is entitled to the rent falling due after the acknowledgment of the sheriff's deed whether it is payable in money or grain. Where however there has been a severance of the landlord's share of the grain before the sheriff's sale of the land, that share does not pass by the sale. All this was ruled in Hershey v. Metzgar, supra. The test is the severance. In Hershey v. Metzgar there was a levy under a fi. fa. upon the owner's interest in his growing grain, and he elected to take the grain under the exemption law, and it was appraised and set apart to him, with the knowledge and without the objection of the plaintiffs in the judgment, who subsequently purchased the land. This was held to be a severance. In Fullerton v. Shauffer, 2 Jones, 220, it was held that when by the terms of the lease the tenant was to retain the rent, and apply it to the payment of a debt of the lessor for which the tenant was surety, this was such an appropriation of the rent in advance, that no rent was due after the subsequent sheriff's sale of the land, and hence none passed to the purchaser. In the present case the question is whether a sale upon a fi. fa. of the landlord's share of the growing grain before actual severance, works of itself such a severance as passes his title to it, as against a subsequent purchaser of the land. If the share were a subject of levy and sale upon a fi. fa., of course this result would be accomplished. But we think it is not. The landlord has no title to his share of the grain until it has been harvested. Lamberton v. Stouffer, supra. The whole of the grain while it is growing belongs to the tenant, and he must deliver to the landlord his share of it after severance. This of course is in the absence of special
Is it a surprise that justice often misses her mark and brings reproach upon herself? Her mission will always be in complicated conditions of society an intricate one, but now it is unnecessarily so and the sum of human suffering is thereby increased. We cannot shift the responsibility for this from our shoulders, and I have done the task I set myself if I have seriously raised a question of duty and in however slight a degree enlisted conscience in the work of reform.
contract to the contrary. Thus we said in Rinehart v.
ston, 1 P. & W. 471, was erroneously decided. In
LEGISLATIVE CONRTOL AS TO CORPORATE
SUPREME COURT OF THE UNITED STATES,
CANADA SOUTHERN RAILWAY Co. v. GEBHARD. In the absence of constitutional provisions to the contrary the relations between a corporation and those holding its bonds as creditors are subject to legislative control, and such control when exercised may bind bond-holders residing in another county.
The C. Railway Co., a Canada corporation, issued bonds secured by mortgage upon its property in Canada, which bonds with interest were payable in New York city. Becoming financially embarrassed and unable to pay interest upon its bonds, it was authorized under an act of the Canadian Parliament to make an arrangement with its creditors, the act providing for the issue of new bonds in exchange for the existing ones which should be a first lien upon its railway, and the interest of which was to be warranted by another corporation which was solvent. Such an arrangement was sanctioned by the holders of more than two-thirds of the capital stock, aud by the holders of more than three-fourths of the bonds of the company. The new bonds did not provide for unpaid interest on the old and bore a less rate of interest. Held, that the arrangement was valid, the Canadian Parliament having authority to permit it, and that it was binding upon non-assenting holders of bonds residing in the United States.
RROR to the Circuit Court of the United States for the Southern District of New York. The opinion states the case.
WAITE, C. J. What is now known as the Canada Southern Railway Company was originally incorporated on the 28th of February, 1868, by the Legislature of the Province of Ontario, Canada, to build and operate a railroad in that Province between the Detroit and Niagara rivers, and was given power to borrow money in the Province or elsewhere and issue negotiable coupon bonds therefor, secured by a mortgage on its "for completing, maintaining and working property, the railway." Under this authority the company, on the 2d of January, 1871, at Fort Erie, Canada, made and issued a series of negotiable bonds, falling due in the year 1906, amounting in all to $8,703,000, with coupons for semi-annual interest attached, payable, principal and interest at the Union Trust Company, in the city of New York. To secure the payment of both principal and interest as they matured, a trust mortgage was executed by the company covering "the railway of said company, its lands, tolls, revenues present and future, property and effects, franchises and appurtenances." Every bond showed on its face that it was of this kind and thus secured.
Before the 31st of December, 1873, the company became satisfied that it would be unable to meet the interest on these bonds maturing in the coming January, and so it requested the holders to fund their coupons falling due January 1, 1874, July 1, 1874, and January 1, 1875, by converting them into new bonds payable on 1st of January, 1877, and by so doing only, in legal effect, extend the time for the payment of the interest, without destroying the lien of the coupons under the mortgage, or otherwise affecting the obligation of the old bonds. Some of the bond holders funded their coupons in accordance with this proposition, and accepted the extension bonds, but under the arrangement their coupons were not to be cancelled until the new bonds were paid.
In this condition of affairs the Parliament of Canada, on the 26th of May, 1874, enacted that the Canada Southern Railway, which was the railway built by the Canada Southern Railway Company under its provincial act of incorporation, “be declared to be a work for the general advantage of Canada," and a "body corporate and politic within the jurisdiction of Canada," for all the purposes mentioned in, and with all the franchises conferred by, the several incorporating acts of the Legislature of the Province. This, under the provisions of the British North America act, 1867, passed by the Parliament of Great Britain "for the Union of Canada, Nova Scotia and New Brunswick, and the government thereof," made the corporation a Dominion corporation and subjected it to the legislative authority of the Parliament of Canada.
On the 15th of March, 1875, another series of bonds amounting in the aggregate to $2,044,000, or there
abouts, was issued and secured by a second mortgage to trustees. After the issue of all the bonds the company found itself unable to pay its interest and otherwise financially embarrassed, and a joint committee, composed of three directors and three bondholders, after full consideration of all the circumstances, submitted to the company and to the bondholders "a scheme of arrangement of the affairs of the company," which was approved at a meeting of the directors on the 28th of September, 1877. This scheme contemplated the issue of $14,000,000 of thirty-year bonds, bearing three per cent. interest for three years and five per cent. thereafter, guaranteed as to interest for twenty years, by the New York Central and Hudson River Railroad Company, the first coupons being payable January 1, 1878. These new bonds were to be secured by a first mortgage on the property of the company and exchanged for old bonds at certain specified rates. The old bonds of 1871 were to be exchanged for the new at the rate of one dollar of principal of the old for one dollar of the new, nothing being given either for the past due coupons or the extension bouds executed under the arrangement in December, 1873. The proposed issue of bonds was large enough to take up all the old indebtedness at the rates proposed, whether bonded or otherwise, and leave a surplus to be used for acquiring further equipment and for such other purposes of the company as the directors might find necessary. This scheme was formally assented to by the holders of 108,132 shares of the capital stock out of 150,000; by the holders of the bonds of 1871 to the amount of $7,332,000 out of $8,703,000; and by the holders of $1,590,000 of the second series of bonds out of $2,029,000 then outstanding. Upon the representation of these facts to the Parliament of Canada the "Canada Southern Arrangement Act, 1878," was passed and assented to in the Queen's name on the 16th of April, 1878.
The statute after reciting the scheme of arrangement with the causes that led to it, and that it had been assented to by the holders of more than two-thirds of the shares of the capita! stock of the company, and by the holders of more than three-fourths of the two classes of bonds, enacted that the scheme be authorized and approved; that the new bonds be a first charge "over all the undertaking, railway works, rolling stock and other plant" of the company, and that the new bonds be used for the purposes contemplated by the arrangement, including the payment of the floating debt. Section 4 is as follows:
"4. The scheme, subject to the conditions and provisos in this act contained, shall be deemed to have been assented to by all the holders of the original first mortgage bonds of the company secured by the said recited indenture of the 15th day of December, one thousand eight hundred and seventy, and of all coupons and bonds for interest thereon, and also by all the holders of the second mortgage bonds of the company secured by the said recited indenture of the 15th day of March, one thousand eight hundred and seventy-five, and of all coupons thereon, and also by all the shareholders of the Canada Southern Railway Company, and the hereinbefore recited arrangement shall be binding upon all the said holders of the first and second mortgage bonds and coupons, and bonds for interest thereon respectively, and upon all the shareholders of the company."
Under the arrangement thus authorized the New York Central and Hudson River Railroad Company executed the proposed guaranty, and the scheme was otherwise carried into effect.
The several defendants in error are and always have been citizens of the State of New York, and were at the time the scheme of arrangement was entered into and confirmed by the Parliament of Canada, the