thirteenth and fourteenth centuries the municipal magistrates pronounced on the validity of wills 1 and administered justice on behalf of the legatee whose legacy was withheld,' though this jurisdiction was evidently regarded with disfavor by the prelates. The municipal authorities before whom wills were proved would naturally claim the right to administer the intestate's property. "The right to regulate the administration of intestates was too closely connected with the testamentary jurisdiction to be conveniently separated from it."4

While we have tried to show that there are indications of a struggle of the feudal lords to obtain or maintain their right to confiscate the chattels of intestates a struggle which lasted from the time of Cnut to the time of Edward I., and of which we still find reminiscences in the records of the fourteenth century, - the main

1 For probate in the hustings of London from 1256 onward, see Sharpe, Cal. of Wills, i. pp. xlii-xlvi; Liber Albus, 180, 403, 407; Ricart's Kalendar, 97-99; Pollock and Maitland, ii. 331. See also Domesday of Ipswich, ed. Twiss, 70-86; Bacon, Annals of Ipswich, 10, 16, 25-27, 41-46, 50-55, 59-61, 68-73, etc. (wills proved from 1269 onward); Placitorum Abbreviatio, 211, 216, 235 (Canterbury, Oxford, and London, temp. Edw. I.); Little Red Book of Bristol, ed. Bickley, i. 32, 52–54 (ordinance concerning probate, 1344. etc.); Hist. MSS. Com. xi. pt. iii. 188 (grant by Edw. II. that wills touching tenements in King's Lynn shall be proved and enrolled before the mayor); Owen and Blakeway, Hist. of Shrewsbury, i. 382; Oliver, Hist. of Exeter, 222; Widdrington, Analecta Eboracensia, 71. These references suffice to modify or confute the opinion of Bracton and the decision of the royal judges, 19 Edw. I. (Pollock and Maitland, ii. 330), that the jurisdiction over bequests of burgage tenements belonged to the ecclesiastical courts. In some boroughs a will was proved first before a representative of the bishop, and afterwards before a town magistrate in the gildhall: Wadley, Abstracts of Bristol Wills, 3, 5, 7, etc.; Manship, Hist. of Yarmouth, 405; Bacon, Annals of Ipswich, 41; Tighe and Davis, Annals of Windsor, i. 324; Registers of Walter Bronescombe, etc., ed. Hingeston-Randolph, 436 (Exeter); Hist. MSS. Com., xi. pt. iii. 233-4 (King's Lynn). Perhaps a canon of Boniface's Constitutions (1261, Wilkins, Concilia, i. 754; cf. ibid., i. 550, ii. 705) may be directed against this practice: "Item testamentis coram ordinariis locorum probatis et approbatis eorundem probatio seu approbatio testamentorum a laicis nullatenus exigatur." Though the records emphasize the claim of the burgesses that wills devising burgage tenements should be proved in the borough court, many of the wills thus proved (for example, at London, Bristol, and King's Lynn) bequeathed chattels only, or both chattels and land.

2 Since the first half of the fourteenth century we hear of actions in the borough courts by the writ ex gravi querela to recover bequests of burgage tenements: Little Red Book of Bristol, ed. Bickley, i. 33; Liber Assisarum, f. 232, 250; Law Quarterly Review, i. 265. As early as 1291 the legatee had a remedy in the borough court of Ipswich against the executors who would not give him seisin : Domesday of Ipswich, ed. Twiss, 72, 82.

Liber de Antiquis Legibus, 106; Letters from Northern Registers, 71.

Stubbs, in Report of Eccles. Courts Commission, 1883, p. xxiii. He makes this statement in speaking of the jurisdiction of the church tribunals.

object of this paper has been to call attention to the fact that throughout the thirteenth century many boroughs were purchasing from their lords a favor or privilege which, according to Bracton, was the right of every free man. In the very decade when Bracton was asserting that the lord shall not meddle with the intestate's goods, the lords were selling a burghal franchise which implied that they had the right to seize such goods. The importance of personal property in boroughs, which was due to the predominance of mercantile over agricultural interests, would naturally make both the lords and the burgesses inclined eagerly to assert their claims against the pretensions of the prelates. The old law of intestacy, as set forth by Glanvill, pressed more heavily upon the tradesmen, whose wealth was made up mainly of chattels, than upon rural freeholders and villeins. It is not strange, therefore, that the town law since the thirteenth century strove to reject the pretensions of both lords and prelates, and to establish the rule that the chattels of the intestate should go to his kinsmen, who would, however, be expected to devote a portion of his property to pious works for the atonement of his sins and the benefit of his soul.

Charles Gross.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

THE LAW SCHOOL.

JAMES G. SWAN, Treasurer.
ROSCOE R. JOHNSON,

MONTE M. Lemann,

HUGH MCLEAN,

ROBERT N. MILLER,

EDMUND M. MORGAN, JR.,

CARL M. OWEN,

ROY V. REPPY,

SAMUEL J. ROSENSOHN,
FREDERICK W. TILLINGHAST,

CLIFFORD P. WARREN.

The registration in the School on November 15 for

the last twelve years is shown in the following table: —

The following tables show the sources from which the twelve successive classes have been drawn, both as to previous college training and as to geographical districts:

As the forty-one Harvard seniors in the first year class have in each instance completed the work required for the Harvard A. B. degree, all members of the class are virtually college graduates. The same is true of practically the entire School. Of the fifty-eight special students, twentyfour have entered this year, and of these twenty are graduates of a college or university, four having received a degree in law.

One hundred and fourteen colleges and universities have representatives now in the School as compared with one hundred and eleven last year and ninety-four the previous year. In the first year class sixty-nine colleges and universities, as compared with sixty-three last year, are represented, as follows: Harvard, 90; Yale, 16; Brown, 13; Dartmouth, 12; Williams, 9; Amherst, 8; Bowdoin, 6; California, Colby, Holy Cross, Nebraska, 4; Cornell University, Illinois College, Stanford, Notre Dame, Ohio Wesleyan, Wesleyan (Ct.), 3; Bates, Chicago, Georgetown College, Hamilton, State College of Kentuck;, Princeton, Washington and Jefferson, Western Reserve, 2; University of Alabama, Amity, Bethany, Cambridge, Cincinnati, Colorado College, De Pauw, Drury, Earlham, Georgetown University, Hamilton, Haverford, Howard, Indiana, Iowa University, Iowa Wesleyan, Johns Hopkins, Lake Forest, Lehigh, Manhattan, Massachusetts Institute of Technology, Mercer, Michigan, Missouri, College City of New York, North Carolina, Oberlin, Ohio State, Oregon, Oxford, Pomona, Rochester, St. Vincent's, Swarthmore, Syrian Protestant, Texas, Tufts, Tulane, Union (Ky.), Valparaiso, Vermont, Wabash, Waynesburg, Wisconsin, Wooster, 1. There are at present in the School ten law school graduates, of whom three have received also an academic degree, representing the following law schools:

Baldwin, Cincinnati, Dalhousie, Dickinson, Harvard, Kings (Windsor), University of Illinois, Maryland, New York University, Washington University (Mo).

THE THEORY OF A FEDERAL COMMON LAW.". Although it is the general policy of the federal courts to follow the decisions of the state courts on questions of interpretation of statutes, still, as a recent case shows, if the rights of the parties have been fixed by contract before the state courts have adjudicated upon the statute, the federal courts will exercise their independent judgment, and may declare a statute valid which the supreme court of the state has adjudged void as in contravention to the state constitution. Great Southern Fireproof Hotel Co. v. Jones, 193 U. S. 532. In like manner, the common law rules laid down by the supreme court of the state may be disregarded by the federal courts.1

The cases establishing this latter doctrine have been made the basis of a theory that there is a federal common law as distinguished from that of the separate states. Starting with the proposition that the common law is adopted by the state itself and is promulgated in the decisions of its supreme court, it is contended that when the rules applied by the federal courts differ from those enforced by the state courts, the federal courts are following a law of their own. Since the judges describe this law as general in contradistinction to local, it must be considered a federal common law. To strengthen this conclusion, appeal is made to the analogy of admiralty and maritime jurisdiction where unwritten law is enforced exclusively by the courts of the United States; and on historical grounds it is maintained that the government of the United States has succeeded to the common law jurisdiction of Great Britain.

8

The argument from analogy to admiralty is hardly tenable, because, aside from the inherent difference between the admiralty and common law systems, the analogy is equally applicable to criminal and civil common law; and it was early settled that the Federal courts have no common law jurisdiction in criminal cases." The same answer might controvert the historical argument, were that argument supported by facts. Although the common law, in so far as it was suited to local conditions, existed in the separate colonies at the time of the Revolution, it was never specifically adopted by the general government. The Supreme Court by repeatedly affirming that there is no common law of the United States has denied an implied adoption, and an examination of the cases where the federal courts apply rules different from those applied by the courts of the state in which the action arises, will show no true grounds for the contrary contention.

The laws of each state consist of the Constitution of the United States and the laws and treaties made under it, and the constitution, statutes and

1 Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368.

2 See Railroad Co. v. National Bank, 12 Őt. (U. S.) 14, 31-32; Myrick v. Michigan Central Railroad Co., 17 Ot. (U. S.) 102, 109.

3 See Murray v. Chicago & Northwestern Ry. Co., 62 Fed. Rep. 24.

See The Lottawanna, 21 Wall. (U. S.) 558.

5 United States v. Worral, 2 Dall. (U. S.) 384; see State of Penna. v. Wheeling, etc., Bridge Co., 13 How. (U. S.) 518, 563.

6 See U. S. v. Reid, 12 How. (U. S.) 363.

7 See Gatton v. Chic., R. I., & P. Ry. Co., 95 Ia. 112.

8 See Bucher v. Cheshire R. R. Co., 125 U. S. 555, 583-584.