tain Indians would give up the lands they occupied, other lands, which were conveyed to trustees for their use, would be exempt from taxation, was held unconstitutional as impairing the obligation of the contract between the State and the Indians. But the rule, in its operation, has been confined almost exclusively to exemptions from taxation incidental to the grant of corporate privileges. Thus in Pacific R. R. Co. v. Maguire (20 Wallace, 42 [1873]) it was held that an exemption from taxation contained in a charter to a railroad corporation was absolute and irrevocable by the State legislature. Mr. Justice Hunt, in delivering the opinion of the court, said: “The right of taxation is a sovereign right, and, presumptively, belongs to the State in regard to every species of property and to an unlimited extent. The right may be waived in certain instances, but this can only be done by a clear expression of the legislative will. The cases of Tomlinson v. Branch (15 Wall. 469) and Tomlinson v. Jessup (Id. 454), in this court, show that when a contract of exemption from taxation is thus established, it is binding upon the State, and the action of the State in the passage of laws violating its terms will not be sustained" (Accord: New Jersey v. Yard, 95 U. S. 104 [1877]; Farrington v. Tennessee, Id. 679; Osborn v. Mobile, 16 Wallace. 481 [1872]; Humphrey v. Peques, Id. 247; Dodge v. Woolsey, 18 Howard, 331 [1855]; Bank v. Knoop, 16 Howard, 369 [1853]; Gordon v. Tax Court, 3 Howard, 133 [1845]; Bank v. Skelly, I Black, 436 [1862]; University v. People, 99 U. S. 309 [1878]). (Accord: Rector v. Philadelphia, 24 Howard, 300 [1860]; Tucker v. Ferguson, 22 Wallace, 527 [1874]; West Wisconsin Ry. v. Supervisors, 93 U. S. 595 [1876]). Although it is impossible to distinguish, as a matter of principle, between the power of a State to grant away its right of eminent domain and its power to grant an exemption from taxation, both being essentially governmental powers, the law is well settled that a State cannot divest itself of the right of eminent domain, nor create in an individual a right against the future exercise of that power upon the same property. Any law whereby it is attempted to barter away the right in question will be treated by the courts as subject to withdrawal at the pleasure of the government (Boom Co. v. Patterson, 98 U. S. 403 [1878]; see, also, Burgess, Political Science and Constitutional Law, vol. I, 239. et seq.) In the charters of banking corporations it is frequently stipulated that the notes or bonds of the corporation shall be received by the State in payment of taxes and debts. Thus in Woodruff v. Trapnall (10 Howard, 511 [1850]), it appears that Kentucky had, in a law incorporating a bank, declared that all its bank bills should be receivable in payment of debts due the State. The section of the law relating to bills was repealable, and this case was an application for a writ of mandamus to compel the State treasurer to receive some of the bills in payment of a judgment. The bills tendered had been issued before the repealing act, but it did not appear whether or not the relator had gotten However, it is necessary to distinguish sharply the bills before the repeal. It was held that the between cases where the exemption is held binding, statute in question constituted a contract between there being a consideration upon which the contract the State and the holders of bills issued before the can be based, and cases where the law offering the repeal, and the application was granted. Mr. Jusexemption is construed to be a mere gratuity, repeal- tice Davis, in commenting upon a substantially able at any time. In Grand Lodge v. New Orleans similar state of facts in Furman v. Nichol (8 (166 U. S. 146 [1896]), it appears that the legisla- Wallace, 59-60 [1868]), said: "That this guarantee ture of Louisiana had passed an act exempting the was until withdrawn by the State, a contract behall of a certain Grand Lodge from taxation so tween the State and every noteholder of the bank, long as it was occupied by a certain order of obliging the State to receive the notes for taxes, Masons. The Masons were already in occupation cannot admit of serious question. In such of the hall when the law was passed, but, in reliance a transaction the benefit is mutual between the upon this law, went to considerable expense in re- parties. The bank get the interest on the notes as pairing the hall. It was held that inasmuch as the long as they are unredeemed, and the holder of law provided in no way for an acceptance of its the bills has a ready and convenient mode of paying terms, and since, therefore, it could not be said taxes. The State did, therefore, in the charter that there was a consideration, the exemption was a creating the bank of Tennessee, on good considerabounty, revocable at will. Mr. Justice Brown said: tion, contract with the billholders to receive from "If the act of 1855 be regarded as a contract within them the paper of the bank for all taxes they owed Dartmouth College v. Woodward (4 Wheat. 518), the State. Until the legislature, in some proper then it is clear that the exemption from taxation way, notifies the public that the guarantee thus was valid and beyond the power of the legislature furnished has been withdrawn, such contract is to abrogate. * *To make such a contract, binding upon the State and within the protection however, there is the same necessity for a considera- of the Constitution of the United States. tion that there would be if it were a contract be- The guarantee is in no sense a personal one. It tween private parties. If the law be a mere offer attaches to the note is part of it, as much so as of a bounty, it may be withdrawn at any time, not- if written on the back of it goes with the note withstanding the recipients of such bounty may everywhere, and invites everyone who has taxes have incurred expense upon the faith of such offer * to pay to take it." * * * These cases are similar in principle to the cases where a State itself issues bonds and the law authorizing the bond issue makes the coupons receivable in payment of debts due the State. In such cases it is uniformly held that a contract results between the State and the holders of the bonds (McCullock v. Virginia, 172 U. S. 102 [1898]; Hartman v. Greenhow, 102 U. S. 679 [1880]). found between the State and the appointee, so as to make the statute irrepealable. Accordingly it was held in Hall v. Wisconsin (103 U. S. 5 [1880]) that a law, under the provisions of which certain parties were employed for a fixed period and for a fixed compensation, to make a geological survey of the State, was irrevocable. The commission of surveyors, the persons who were appointed under the statute, were not State officers. Mr. Justice Swayne, in delivering the opinion, said: "The term civil officers * * * embraces only those officers in whom a portion of the sovereignty" (governmental authority?) "is vested, or to whom the enforcement of municipal regulations, or the control of the general interests of society is confided." Quasi-contracts. A Contract Distinguished from an Office. The question whether a State has a right to repeal or amend a statute, under the terms of which persons have been appointed or employed, depends upon whether the statute in question has created an office or authorized a contract. The grant of an office, like the charter of a public corporation, is a delegation of governmental authority and revocable at pleasure by the State, on the principle that where The question as to how far a quasi-contract, i. e., authority is vested in the legislature by the Consti- a contract implied in law, may be considered a contution of a State, it is impossible for the legislature tract within the meaning of the Constitution, seems, by contract or any other means to deprive itself under the decisions of the Supreme Court, to be an of its inherent prerogatives. The law creating an open one. It is fair to say, however, that if the office, therefore, may be repealed, or the salary of the obligation imposed by law is in the nature of a statincumbent reduced during his term, without impair-utory obligation, the law under which the quasiing the obligation of a contract. Thus in the case contract right has arisen may not be repealed so as of Butler v. Pennsylvania (10 Howard, 417 [1850]), to impair rights already vested under its provisions. where it appeared that the statute, under which Thus where public offices are abolished, it is held certain canal commissioners had been appointed, had that the officer is entitled to recover for his services been amended during the commissioners' term of rendered before the repeal of the law by virtue of office, so as to reduce the rate of their compensa- which his office had existed at the rate of compention, it was held that the original statute had sation fixed in that law. After services have been created an office, and that, therefore, the amending rendered under a law, resolution or ordinance which act was not unconstitutional as impairing the obliga- fixes the rate of compensation, there arises an imtion of a contract. Mr. Justice Daniel, in delivering plied contract to pay for those services at that rate. the opinion of the court, said: "We have already This contract is complete, its obligation is perfect shown that the appointment to and tenure of an and it is beyond the operation of a repealing act office created for the public use, and the regulation (Fisk v. Jefferson Police Jury, 116 U. S. 131 [1885]; of the salary affixed to such an office, do not fall Butler v. Pennsylvania, 10 Howard, 402 [1850]). within the section of the Constitution relied on by The principle is well illustrated by the case of the plaintiffs in error; do not come within the im- Steamship Co. v. Joliffe (2 Wallace, 457 [1864]). port of the term contract, or, in other words, the It appears that Joliffe, a pilot, had tendered his vested, private, personal rights thereby intended to services to the Steamship Company, and upon the be protected. They are functions appropriate to that refusal of the company to accept them he became class of powers and obligations by which govern- entitled, under a statute of California, to half-pilotments are enabled, and are called upon to foster age fees. The statute under which the half-pilotage and promote the general good; functions, therefore, fees were claimed was subsequently repealed in form which governments cannot be presumed to have by a law which substantially re-enacted all the prosurrendered, if, indeed, they can, under any cir- visions of the original statute. And, although the cumstances, be justified in surrendering them' case went off on the ground that the original statute (Accord: Connor v. New York, 1 Selden [N. Y.]. had not, in fact, been repealed, it was pointed out 285 [1851] Warner v. People, 7 Hill [N. Y.], 81 that even if such had been the case, Joliffe's claim, [1844]; see, also, United States v. Hartwell, 6 Wal- being a contract right within the protection of the lace, 393 [1867]; Hare, American Constitutional contract clause. would not have been affected. Law, vol. 1, 650, and State decisions there collected; Mr. Justice Field, in delivering the opinion of the United States v. Maurice, 2 Brockenbrough [1823]). court, said: "The transaction in the latter case, If. however, a statute authorizing the employment between the pilot and the master or owners, cannot of a person does not involve the delegation of gov- be strictly termed a contract, but it is a transaction ernmental functions, but looks rather to the to which the law attaches similar consequences; it is performance of services, the end or accomplishment a quasi-contract. of which may be a governmental function, but the actual doing of which requires the exercise of no governmental authority, then a contract may be * * In such case the party makes no promise on the subject; but the law 'consulting the interests of morality' implies one; and the liability thus arising is said to be a liability * * * Marriage. upon an implied contract. The claim for the half- the two cases merely because of the difference of pilotage fees stands upon substantially similar form in which the quasi-contractual obligation apgrounds. When a right has arisen upon a pears in the cases. contract or transaction in the nature of a contract authorized by statute, and has been so far perfected that nothing remains to be done by the party asserting it, the repeal of the statute does not affect it, or an action for its enforcement." However, as to judgments, another species of quasi-contracts, the law seems to be settled that they are not within the protection of the constitutional prohibition under discussion. In a dictum in the case of Garrison v. New York (21 Wallace, 203 [1874]), it was doubted whether a judgment, not founded upon an agreement, express or implied, is a contract within the meaning of the Constitution. This dictum of the court was adopted as law in the later case of Louisiana v. New Orleans (109 U. S. 288 [1883]). In this case it appeared that the State legislature had passed a law taking away from the city of New Orleans the power to raise taxes to a sufficient amount to pay certain judgments which the relator held against the city. The legis- | lation so limiting the taxing power of the municipality had been passed after the judgments had been acquired, and it was sought to have it declared unconstitutional as impairing the obligation of the judgments in question. It was held, however, that the judgments were not contract within the meaning of the Constitution. Mr. Justice Field, who delivered the opinion, said: “A judgment for damages, estimated in money, is sometimes called by the textwriters a specialty or contract of record, because it establishes a legal obligation to pay the amount recovered; and, by fiction of law, a promise is implied where such legal obligation exists. It is on this principle that an action ex contractu will lie upon a judgment (Chitty on Contracts [Perkins' Ed.], 87). But this fiction cannot convert a transaction wanting the assent of the parties into one which necessarily implies it. * * * The prohibition of the federal Constitution was intended to secure the observance of good faith in the stipulation of parties against State action. Where a transaction is not based upon the assent of the parties it cannot be said that any faith is pledged with respect to it, and no case arises for the operation of the prohibition." It is submitted that any distinction between a statutory obligation like that in Steamship Co. v. Joliffe (supra) and in Fisk v. Jefferson Police Jury (supra), and a judgment is entirely unfounded in principle. Both are equally obligations imposed on parties, regardless of their intention, and in many cases in spite of their actual dissent. In both instances the parties are bound, not because of their assent or because they have willed to be bound, but because the law has imposed the obligation (Keener, Quasi-contracts, 16). It is is difficult, then, to see why the court should distinguish between Notwithstanding the dicta of both Chief Justice Marshall and Justice Story, in Dartmouth College v. Woodward (4 Wheaton, 650, 721 app.), that marriage might well be considered a contract within the meaning of the contract clause, and that, therefore, a State legislature could not dissolve a marriage, unless there had been a breach on either side, it may be stated as a principle of law, now well settled, that marriage is a civil status rather than a contract. A legislative divorce, in consequence, would not be invalid as impairing the obligation of contracts (1 Bishop, Marriage and Divorce, secs. 3, 667-669, and State decisions there collected; see, also, 3 Parsons on Contracts, 545; 2 Wharton on Contracts, sec. 1069). It is to be noted, however, that the point never seems to have been raised for decision before the Supreme Court; but the principle of law that marriage is a status is so clearly sound, as demonstrated in the opinions of the learned commentators above cited, that there can scarcely be room for doubt as to the disposition that tribunal would make of the question. (2) (3) (4) A grant of land is a contract within the mean- | ing of the Constitution, and, therefore, even before the adoption of the Fourteenth Amendment, could not be revoked by a State. no distinguishable principle, has refused to consider a quasi-contract in the form of a judgment, as within the protection of the contract clause. (a) But it seems that, although a State (6) Although the point has never been raised for could not, in terms, annul a A grant of a corporate charter or a franchise the law granting the charter is, therefore, (7) (a) However, in the case of a franchise, unless an exclusive privilege is (b) But a State cannot grant away (x) A State cannot barter (z) But a State can, upon taxation. (c) The stipulation in the charters of decision before the Supreme Court, there A State Constitution is not a contract; a contracts WM. UNDERHILL MOORE. NEW YORK CITY, August, 1901. THE THE MIDDLE AGES, ESPECIALLY BY GEO. D. FERGUSON. Gibbon, in the forty-fourth chapter of his very remarkable work, that chapter in which he treats of the development of Roman law, makes the very suggestive remark that the laws of a nation form the most instructive portion of its history. This remark is, after all, little more than the reiteration of what had been said long before both by Plato and Aristotle. But few men were more capable than Gibbon of forming a clear and unprejudiced opinion on the subject, or of tracing the development of the Roman law from the Twelve Tables down to the Pandects of Justinian. He saw how clearly that development was bound up with the growth of the Roman people, and that the legal development could not be separated from the development of their social and national life. Arnold, the German legist, in his "Cultur und Rechtsleben," expresses this idea in another way when he says: "It is perfectly evident that the state of the laws in its dependence on the other eleAlthough a law creating an office is revocablements of life can only be simply the expression of a holder of the notes. the contemporary culture of the people. And it is quite true that each stage, not merely in the world's history, but in the history of each nation, has been marked by the existence of characteristic laws, and their embodiment in corresponding institutions, and, therefore, a study of these laws must reveal a picture of the time at which they were in force." at the will of the legislature, if a statute authorizing the employment of a person does not involve the delegation of governmental authority, but looks rather to the performance of services, not requiring the exercise of governmental power, then a contract may come into existence between the State and the appointee, so as to make In proportion as man emerges out of a state of a repeal of the statute unconstitutional as savagery and progresses towards civilization, so his impairing the obligation of contracts. relations of life become more complex, and the (5) A quasi-contract in the nature of a statutory social organization needs to be regulated by laws obligation is a contract within the meaning adapted to his improved social development. If of the Constitution; but the court, upon we examine the statute book of any of the civilized countries of the present day, we shall find that, certainly in the earlier periods, the greater majority of the laws are regarding matters which affect the relations of individuals to one another, and only later those laws which relate to the duties and rights of society, and still later those which concern the holding of property. If we consider the laws of any one people, and then contrast them with the laws of any other people, or two periods of the same people. there will be clearly indicated the general temper and character of the two peoples, or the temper and character of the same people at different periods. We may even go farther, and remark that laws may also indicate the very phases of thought, which are the prevailing thoughts of a people. But the close connection between law and history may be traced in almost every department of the life of society. Herbert Spencer has given us a somewhat lengthy disquisition on the connection between law and religion. But the same may be noticed regarding the development of business, or of trade and commerce. Sir James Stephens remarks, regarding the legal measures of an early stage of society, "It has often seemed to me singular, that, in proportion as we go back in legal history, the law becomes more and more technical, intricate, and minute in its details, and more and more vague in its general principles." However singular this may appear, it is not difficult of explanation. The rules of life were, at an earlier period, not recognized as general principles leaving room for freedom of action in detail. There was evidently no idea of systemizing. Each injury in flicted, each crime committed, stood as an isolated fact, and had its own penalty. Let us illustrate our meaning by one or two instances. The very first article of the Salic law, after stating the form of summons to a court, and the penalty for not obeying the summons, treats of stealing pigs, and proceeds as follows: (1) If anyone shall have stolen a sucking pig and it shall be proved against him, he shall be fined (culpabilis judicitur) 120 denarii, which make 3 solidi. (2) If anyone shall have stolen a little pig from the field, which could live without its mother, and it shall be proved against him, he shall be fined 40 denarii, which make I solidus. (3) If any one shall have stolen a one-year pig, and it shall be proved against him, he shall be fined 120 denarii, which make 3 solidi. (4) If anyone shall have stolen a pig of two years old (porcum bimum), he shall be fined 600 denarii, equal to 15 solidi. (5) Which fine, it will be well to observe in regard to two pigs. (6) If, however, he shall have stolen three or more, he shall be fined 1,400 denarii, equal to 35 solidi. (7) If anyone shall have stolen a pig from his sty (de intro) he shall be fined 600 denarii or 15 solidi. The same minute rules prevail here as prevailed in the case of the pig stolen de campo. Then the law goes on to draw a distinction between the stealing of a sow and a boar. If the hog should have been gelded and thus prepared for sacrifice, the fine was 700 denarii. If, however, it could be proved that it was not intended for sacrifice, then the fine was 600 denarii. If the thief should steal twenty-five, which should be the whole number in the pen, he should be fined 2,500 denarii. If, however, there should be more in the pen, then the fine was only 1,400 denarii. If fifty should be stolen, the fine was still apparently 2,500 denarii. In regard to murder, it is decreed If a man should slay another, living under the Salic law, he should be fined, or pay a wergeld of 8,000 denarii; if he should have thrown the man into a well or drowned him (si vero cum in puteum aut sub aqua miserit) he should be fined 2,400 denarii. If he should have hid the body under branches, or stones, or any such thing (aut de ramis, aut de callis, aut de quibuslibet rebus celaturus texerit) he should be fined 24,000 denarii. If a Frank, in truste dominica, or a freewoman (mulierem imgenuam) should be killed, the murderer had to pay 24,000. If anyone killed a Roman, of the king's household (Romane homine conviva rege) he was fined 12,000 denarii. If the Roman was not of the king's household (non conviva rege) the fine was 4,000 denarii. If he was a Romanus tributarius the fine was only 3,000 denarii. Similar minuteness of detail is observed in regard to all manner of injuries inflicted or crimes committed. Each part of the human body, even to the little finger, had its value, and an injury done to it Had a separate fine or wergeld inflicted; even the very instrument made a difference, whether the wound was inflicted by an arrow, or by a club, or a sharp instrument, or by the mailed fist, the fine varied. In some cases, it is difficult to discern the reason of the distinction. These instances which we have now adduced may convey some idea of the character of the Salic laws, the laws of the predominant Frank tribe that invaded Gaul; but the laws of the Ripuarians, of the Thuringians, of the Burgundians, of the Lombards, as also of the AngloSaxons, all present the same general features. They point to a primitive organization of society, to a period when the nation or tribe had not yet arrived at the understanding of general principles, which should govern society. If we compare the Salic laws with the pandects of Justinian, we would seem to have, in the one, the first rudiments, in the other, the full maturity of civil or legal wisdom. In this rude Code, we have the legal maxims and customs of the old tribe of the Salii, hardened down to the form of written law. We have no knowledge of the earlier codification of these customs. They are now before us in Latin, into which language they were translated, apparently, in the later years of Clovis. But that they had been previously codified there can be little doubt, for in the Malberg gloss we have some of the old Gothic expressions which are still preserved in the earlier redactions. The words of the Malberg gloss are in the earlier Frank or the Frisian language. But, from a study of the Salic laws, we may gather a very tolerable idea of the character of the Franks, and the degree of civilization which they had reached. Indeed, |