Gambar halaman
PDF
ePub

equally unfriendly popular feeling, not alone toward railways, but toward corporations of every class (1). The principles of American organic law are ordained to "secure the blessings of liberty to ourselves and our posterity," recognize the equality of men before the law and deny the omnipotence of the legislative branch of government. Under our institutions, liberty is not a matter of grace, but a thing of absolute and undeniable right.

"

visions is to safeguard private rights and prevent unjust discriminations. Their beneficence is not confined to a favored few, but, ex vi termini, they extend to and protect alike the humblest and the mightiest, the one not more than the other.

Legislation discriminating adversely against the employer of classes of labor, and purporting to discriminate in favor of the employe is, indeed, a recent innovation in American statute law, emanating from societies of organized labor, though, as previously suggested, other social forces have effectually contributed to this end.

In obedience to the old and familiar maxims, Isic utere tuo ut alienum non laedas" and "salus populi suprema lex," every one who enters society does, and must er necessitate, surrender a portion of The usual objections to this class of legislation are: what may, for want of a better term, be denominated | First, it is not a valid exercise of the police power his natural rights; but this limitation is only an ex- of the States, as limited by the State and Federal tension of his rights (2). The good of the whole is Constitutions; second, the legislative basis of classithe supreme good, for from this comes the greatest fication is an improper one in, contravention of good to the individual. If one may exercise an un- constitutional principles. limited and uncontrolled dominion over his property and an absolutely unrestrained freedom of conduct, regardless of the claims of society, to this extent are the rights of others imperiled and infringed; and what may seem a broader liberty is really not liberty at all, but a license for the perpetration of wrong and oppression. Liberty and the rights of property are more securely and more wisely guarded when every member of the community recognizes the tantamount right of every other member of the civic organization, and regulates his conduct and exercises his rights in conformity thereto.

With a satisfaction of these demands upon the individual, however, society must be satisfied; for, although recognizing the breadth of the police power and its efficacy, we have seen fit to circumscribe the possibility of inordinate requisitions by provisions in the fundamental law which may not be contravened by the whim or caprice of those who, perchance, may be "drest in a little brief authority."

No State shall pass any law impairing the obligation of contracts, nor deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Constitutions of the respective States usually provide that the legislature "shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same ternis, shall not equally belong to all citizens," and "that no local or special laws shall be passed where a general law can be made applicable” (3).

The salutary purpose of these and similar pro

The right of a State to interfere with the private relations of employer and employe, to make, modify or prescribe the labor contract, if it exists, must arise from its police power. But, in general terms, the police power of a State comprehends only the protection of the public health and morals, the safety and good order of the community, and its internal affairs (4). It affords no ground for the invasion of private right for other purposes, and the imposition of unwarranted burdens having no relation to the public necessities.

It is the privilege and, indeed, it is the duty of the State to make and enforce such regulations as may be necessary to the protection of the health and safety of her citizens, and adequate to the protection and purification of the public morals; she has no higher prerogatives, and the courts in England and America have always considered such legislation not only proper, but indispensably necessary. Of course,

the State must take notice of active social forces, of

conditions as they are, and limit the cravings of those so "greedy of filthy lucre" as to sacrifice the health of honest toilers to the attainments of their own pernicious ends (Tied. Lim. Police Power, p. 181); but the police power being exercisable by the legislature, principles of the fundamental law here limit the exercise of such power, as in any other action within the province of that department (5).

have assumed to regulate and prescribe the number Under the guise of the police power, legislatures of hours which one may labor during a given period, invading alike the guaranteed liberty of the employer

(1) See a discussion of this subject in Dillon's, The and employe. Law of Municipal Bonds.

(2) State v. Noyes, 47 Me., 211; Commonwealth v. Alger, 7 Cush., 53; Thorpe v. Rutland, etc., R. Co., 27

Vt., 140; New Orleans, etc., Co. v. Hart, 40 La. Ann., 474; 4 Blackstone's Com., 162; Tiedman's Lim. of the Police Power, sec. 1; 18 Am. & Eng. Ency. of Law (1st ed.), p. 739, et seq.; Cooley's Const. Limitations (6th ed.), p. 704, et seq.

(3) Const. of Indiana, sec. 23, art. 1; Const. of Illinois, sec. 22, art. 4; Const. of New York, sec. 18, art. 3; Const. of Iowa, sec. 6, art. 1; Const. of Kansas, sec, 17, art. 2. (Such provisions are found in almost every State Constitution. These cited serve to illustrate).

The organic law of every State declares as an inherent one, the right of every man to acquire and enjoy property; but this is merely a constitutional recognition of a right which existed long before Constitutions were framed; such provisions are but the

(4) See cases cited in Note 2.

(5) Tiedman's Lim. of the Police Power, sec. 2; 18 Am. & Eng. Ency. of Law (1st ed.), p. 742; In re Jacobs, 98 N. Y., 98, 108; People v. Gilson, 109 N. Y., 389, 398; In re Wilshire, 103 Fed. Rep., 620; Mugler v. Kansas, 123 U. S., 623, 661.

reflections of those immutable principles upon which all popular government has its support and may have been inserted ex abundanti cautela.

Contracting parties should be left free to make such contracts as they may deem proper, unless the public has an interest in the subject matter of the contract, or some regulation becomes necessary to prevent injurious consequences to others.

Labor beyond what is merely normal exercise, is injurious to the health of the individual; but under provisions such as are common to American constitutions, the legislature has no power to define the number of hours which one may labor during a given period when this is taken as a fact segrated from all others (6). If the State may prescribe the number of hours which one may labor, during a given period, in an underground mine, may she not also prescribe the number of hours during which the lawyer may "labor" in the preparation of his brief, the number of calls which the physician may make, and the number of acres of corn which the farmer may cultivate in a given period of time?

If one in his industrial or professional pursuits is willing to sacrifice a degree of health to the attainment of laudable ends, the State can not restrain him; no public interest, in the legal sense, is jeopardized by the impairment of his health. The police power does not comprehend the protection of one from the consequences of his own indiscretions. The true limitation is that, one shall exercise his rights in such manner as not to interfere unduly with the rights of others. "Any law which goes beyond that principle, which undertakes to abolish rights, the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security, cannot be included in the police power of the government. It is a governmental usurpation, and violates the principles of abstract justice as they have been developed under our republican institutions" (7).

The laborer is neither a non compos nor a ward of the State; he needs not the guidance or advice of the legislature as to the number of hours which he shall work, what he shall eat and drink, or the style and cut of his working clothes. He is at liberty to choose his own occupation and must judge for himself of his physical ability to perform such work for any period of time and should contract with his employer with particular reference thereto as they may deter

(6) In re Morgan, 26 Colo., 415; S. C., 58 Pac., 1071;

S. C., 47 L. R. A., 52; In re House Bill, 21 Colo., 27; S. 39 Pac., 431; Low v. Rees Printing Co., 41 Neb.,

C., 127; S. C., 59 N. W., 362; S. C., 24 L. R. A., 702; Re J. C. Cubach, 85 Cal., 274; S. C., 9 L. R. A., 482; S. C., 20 Am. St. Rep., 226; S. C., 24 Pac. Rep., 737; Seattle v. Smith, 22 Wash., 327; S. C., 60 Pac., 1120; People v. Orange Co., etc., Co., 75 N. Y. Supp., 510; Wheeling, etc., R. Co. v. Gilmore, 8 Ohio Cir. Ct., 658; Ritchie v. The People, 155 Ill., 98; Com. v. Perry, 155 Mass., 117; S. C., 28 N. E., 1126; In re Jacobs, 98 N. Y., 98; S. C., 50 Am. Rep., 636. See, contra: People v. Lochner, 76 N. Y. Supp., 396.

(7) Tiedman's Lim. of the Police Power, sec. 2.

mine by their agreement to be mutually most advantageous. The right to contract has been held to be both liberty, and a property right; it is a means of acquiring and enjoying property, and an unwarranted impairment of the right is a taking of property without due process of law. Liberty comprehends much more than mere freedom from physical restraint, for this is the minutest difference between the freeman and the slave. It is a travesty to deny the right, the liberty of one to exercise his faculties as he may choose, and as he may be able most advantageously to do.

Not all laws which limit the number of hours which a class of laborers may labor during a given period are unconstitutional, as being beyond the police power, for peculiar conditions may make such a reegulation an eminently proper one. Not all employes are similarly situated; there may be important differences in the nature of the work to be performed, the place of performance, or in the class of employes which perform the service. The police power may justify a law which limits the working day of women and children engaged at employment in a factory, while a law which limits the number of hours which men may labor on a farm would, perhaps, be an unwarranted act, resting upon no reason of which the law can take cognizance (8).

The second clause of section 6, article 16, of the Constitution of Utah provides that "the legislature shall pass laws to provide for the health and safety of employes in factories, smelters and mines.” Under such a provision it was held by the Supreme Court of Utah (9) that a statute limiting the period of employment of workingmen in smelters and underground mines to eight hours per day, except in cases of emergency where life or property is in imminent danger, was a law "calculated to protect the health of such laboring men," and not beyond the power which the people of the State, through their Constitution, had declared their legislature "shall" exercise; and not in conflict with the fourteenth amendment of the Constitution of the United States. The Supreme Court of the United States (9 1-2) affirming these decisions of the Utah court, Mr. Justice Brown speaking for the court, said: "We have no disposition to criticise the many authorities which hold that statutes restricting the hours of labor are unconstitutional. Indeed, we are not called upon to express an opinion upon this subject. It is sufficient to say of them that they have no application to cases where the legislature had adjudged that a limitation is necessary for the preservation of the health of employes, and there are reasonable grounds for believing that such de

(8) Com. v. Beatty, 15 Pa. Sup. Ct., 5; Com. v. HamilRitchie ton, etc., Co., 120 Mass., 383. But see contra: v. The People, 155 Ill. 98.

(9) State v. Holden, 14 Utah, 71; S. C., 37 L. R. A., 103; State v. Holden, 14 Utah, 96; S. C., 37 L. R. A., 108. See Laws of Utah, acts of 1896, sec. 1, p. 219.

(9 1-2) Holden v. Hardy, 169 U. S., 366, 397-398; S. C., 18 Sup. Ct. Rep., 383; S. C., 42 Law Ed., 780.

companies and their employes as the objects of its supervisory control. There may be, in some cases, some reason for limiting the number of hours of employment, but it is difficult to see how the police power justifies such legislation as that above mentioned (14).

termination is supported by the facts. The question the medium of payment. This class of legislation in each case is whether the legislature has adopted has usually singled out mining and manufacturing the statute in the exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class." Both courts held such enactments to be a valid exercise of the police power of the State. While this constitutional provision of Utah may be but little more than a declaration of the police power, which exists without it, yet when construed with other provisions of its Constitution, somewhat peculiar and distinctive in this regard, the policy of the State is very different from that of most States of the American Union.

Such a provision as the one above mentioned may be said to be a limitation upon usual constitutional provisions, and this fact must be considered before Holden v. Hardy is received as authority or argument in any other jurisdiction in favor of such legislation. A provision of a State Constitution cannot, of course, defeat any of the limitations imposed by the federal Constitution, the supreme law of the land, and the case is, therefore, authority in favor of such legislation under federal limitations.

One who engages in a business affected with a public interest, devoting his property to a public use, may be said to grant to the public an interest in such use, which may become a subject of peculiar regulation by the State (11). Thus, railways may be said to be property of this nature; and, therefore, a law which prescribes the number of hours in a given period which the employes of such a company may labor in the operation of its trains is perhaps a valid one, having for its aim the safety of the public (12).

Although the State may not regulate arbitrarily without reference to the health, morals or safety of the public, the number of hours to constitute a day of labor and forbid contracts of employment for a day consisting of a different number of hours, there occurs no reason to us why the legislature may not prescribe that, where the parties have not, by their contract, fixed a different unit of time a particular number of hours shall constitute a day of labor (13). Such an enactment is analogous to laws prescribing standards of weights and measures which have been considered valid laws "from time whereof the memory of man runneth not to the contrary."

In this category falls another class of legislation, namely, that having reference to the manner of performing the service, the basis of compensation and

(11) Munn v. Illinois, 94 U. S., 113; State v. Peel Splint Coal Co., 36 W. Va., 802-811; People v. Lochner, 76 N. Y. Supp., 396, 399.

(12) Munn v. Illinois, supra; People v. Phyfe, 136 N. Y., 554; S. C., 23 N. E., 978; S. C., 19 L. R. A., 941. (A case which does not decide this point, but intimates this is true.) See Wheeling, etc., R. Co. v. Gilmore, 8 Ohio Cir. Ct., 658, 664-667.

(13) People v. Phyfe, supra; McCarthy v. York. 98 N. Y., 1; United States v. Martin, 94 U. S., 400; Brooks v. Cotton, 48 N. H., 50; Luske v. Hotchkiss, 37 Conn., 219.

Speaking against a law of this kind, the Supreme Court of West Virginia said: "The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing these in what manner he may think proper, without injury to his neighbor, is a plain violation of this most sacred right. It is equally an encroachment both upon the just liberty and rights of the workman and his employer, or those who may be disposed to employ him, for the legislature to interfere with the freedom of contract between them, as such interference hinders the one from working at what he thinks proper and at the same time prevents the other from employing whom he chooses" (15).

An act which prohibits persons sui juris from agreeing upon a medium of payment, neither involving fraud nor tending to injure the public, is in plain violation of the fourteenth amendment as a deprivation of both liberty and property without due process of law. The welfare of the community does not demand that scrip shall not be given in payment of wages more than public policy demands that a horse shall be exchanged only for cash, and not for another horse (16).

Contracting parties deal at arms' length and their interests are always antagonistic, each seeking to obtain an advantage over the other. The business of the law in this regard is to prevent fraud and over-reaching by unfair means, and not to deprive one of any legitimate profit that may accrue to him in this exchange of labor for a price (17). It cer

(14) San Antonio, etc., R. Co. v. Wilson, 4 Tex. Civ. App., 565; Braceville Coal Co. v. People, 147 Ill., 66; Commonwealth v. Perry, 155 Mass., 117; S. C., 14 L. R. A., 325; State v. Goodwill, 33 W. Va., 179; S. C., 10 S. E., 286; S. C., 6 L. R. A., 621; State v. Fire Creek Coal Co., 33 W. Va., 188; 6 L. R. A.. 359; 10 S. E., 288; Godcharles v. Wigeman, 113 Pa. St., 431; 6 Atl. Rep., 354; Millett v. People, 117 Ill., 294; Baker v. Portland, 5 Sawyer, 566; Ramsey v. People, 142 Ill., 380; In re Preston, 63 Ohio St., 428; S. C., 59 N. E., 101; S. C., 81 Am. St. Rep., 642; Commonwealth v. Brown, 8 Pa. Sup. Ct., 339; Harding v. People, 160 Ill., 459; S. C., 43 N. E., 624; S. C., 52 Am. St. Rep., 344; Cooley's Const. Limitations, p. 745. Contra: Hancock v. Yaden, 121 Ind., 366; 23 N. E., 254; 6 L. R. A., 576; State v. Peel Splint Coal Co., 36 W. Va., 802; 15 S. E., 1000; S. C., 17 L. R. A., 385; State v. Wilson, 61 Kan., 32; S. C., 58 Pac., 981. (15) State v. Fire Creek Coal Co., supra.

(16) State v. Loomis, 115 Mo., 307; State v. Haun, 61 Kan., 146; S. C., 59 Pac., 340; 47 L. R. A., 369; State v. Goodwill, supra; Frorer v. People, 141 Ill., 171; 31 N. E., 397; S. C., 16 L. R. A., 495; Ritchie v. People, 155 Ill., 98; S. C., 40 N. E., 454; S. C., 29 L. R. A., 79. (17) Tiedman's Lim. of the Police Power, sec. 178.

tainly is a misguided sympathy that seeks to justify such legislation upon the social inequalities of the race, in disregard of principles which enable a legislature to deprive one of what is, to Americans at least, most dear. Social inequalities have their origin in differences which legislation cannot eliminate. Economy and business sagacity cannot be supplied by a legislature where nature has failed to give, and perseverance, industry and practice have failed to cultivate them.

Another class of this so-called labor legislation consists of enactments prescribing the time of payment of laborers' wages and granting unusual remedies for the collection thereof.

When wages have been earned they become a credit of the wage-earner; what was before the rela

tion of only employer and employe has now become that of debtor and creditor. A law giving an employe a special remedy for the enforcement of his demand, different from and superior to other creditors of the same debtor, is, it seems to us, conspicuously opposed to that absolute equality which

and mediocrity of fortune, that makes such legislation tolerable.

Organized labor may need protection from its own power, for, the assertion of a false principle to enlarge the rights of a laborer may, by reaction, become the very means of destroying such rights. In a system composed of precedents it is essential to a proper structure that every element of its composition harmonize with the whole, and to build wisely is to not sacrifice the stability of the whole structure to what may seem suited to a pleasing exterior.

Another very serious objection to legislation of this class is that, admitting that such matters are embraced within the police powers of the States, the classification is improperly assumed. This has been the principal objection.

conflict with the provisions of the fundamental law Not all class legislation is unconstitutional as in above mentioned; nor is it sufficient that a law operates equally upon all of a class created by the legislature (21), for the recognition of this as a correct principle would give to the legislature the power to arbitrarily single out individuals and govern them by an oppressive and unjust law which, in the nature of things, is equally applicable to others of the community whom it does not reach and to whom it does not apply. There must be some reasonable, some substantial ground of classification, based upon dis

regulation, bearing a just and proper relation to the necessities of the entire group similarly situated, excluding none, the facts of whose cases are essentially the same (22).

pervades American institutions, and cannot be a valid exercise of the police power. On this proposition, however, the authorities are in conflict (18). In an opinion holding unconstitutional a law of this nature, the Court of Appeals of Texas said: "If the legislature, for the purpose of enforcing the pay-tinctions which inhere in the subject-matter of ment of employes' wages, can pass a law like this, imposing twenty per cent on the amount due, does it not imply a power to make it ten times the amount claimed? If, then, legislative power exists to pass such a law as this, on the same principle why can the legislature not apply it to any simple debt, and, if on demand of the creditor the debtor fails to pay by a given time fixed by the legislature, make him pay double or treble the amount accordingly as the legislative enactment may direct? Whatever the object of such legislation, it eventuates in a decree taking property from one person and giving it to another" (19).

We have not found the statement in any of the

books that, for every purpose, laborers constitute a

class. Indeed, this would be inaccurate; for the laborer on the farm is situated very differently from the laborer in an underground mine, and their necessities for certain purposes are widely variant. But are their necessities for all purposes equally so dissimilar? We think they are not, and, therefore, that there may be legislation which is invalid, unless it include the entire body of laborers (23).

Such laws emanate from the nondescript principle of paternalism, quite out of harmony with the spirit Numerous statutes have been enacted with special of popular liberty, and not very different from despot-reference to the employes of corporations of the ism. It introduces into American society a factor classes above mentioned. A corporation is a person greatly to be deplored, and involves the application within the meaning of the fourteenth amendment of of a principle which, if applied to the same class the Constitution, of the State Constitutions and pubwith equal but not greater force, in other respects, lic statutes, respecting property rights, when such would be bitterly resented as an unjust discrimina-a construction is not inconsistent with the evident tion, a governmental usurpation (20). It is only the chasm that separates labor and capital, wealth

(18) San Antonio, etc., R. Co. v. Wilson, supra; Leep v. St. Louis, etc., R. Co., 58 Ark., 407; S. C., 23 L. R. A., 264; Commonwealth v. Perry, supra; Bauer v. Reynolds, 3 Pa. Dist. Rep., 502; S. C., 14 Pa. Co. Ct. Rep., 497; Braceville Coal Co. v. People, 147 Ill., 66; Ritchie v. People, 155 Ill., 98; Gulf, etc., R. Co. v. Ellis, 165 U. S., 151. Contra: Hancock v. Yaden, supra; Re House Bill 1230, 163 Mass., 589; S. C., 28 L. R. A., 344; St. Louis, etc., R. Co. v. Paul, 64 Ark., 83; S. C., 37 L. R. A., 504.

(19) San Antonio, etc., R. Co. v. Wilson, supra. (20) Tiedman's Lim. of the Police Power, p. 571.

purpose of the same (24).

Whether the employer is an individual, acting in

(21) Yick Wo v. Hopkins, 118 U. S., 356, 369; Gulf. etc., Co. v. Ellis, supra, p. 159.

(22) People v. The Judge, 17 Cal., 548; Randolph v. Wood, 49 N. J. L., 85; State ex rel. v. Parsons, 40 N. J. L., 1; Iowa, etc., Co. v. Soper, 39 Iowa, 112.

(23) Humes v. Missouri, etc., R. Co., 82 Iowa, 221; Phillips v. Missouri, etc., R. Co., 86 Mo., 540; State v. Loomis, 115 Mo., 307, and cases cited.

(24) Dartmouth College Case, 4 Wheat., 518; Santa Clara Co. v. Sou. Pac. R. Co., 118 U. S., 394; Pembina, etc., Co. v. Penn., 125 U. S., 181; Gulf, etc., R. Co. v. Ellis, supra, and cases cited at p. 154.

his natural capacity, or a number of individuals, act-
ing in a corporate capacity, cannot furnish the basis
of discrimination in favor of one or against the other. I.
The demands of a class of laborers are not varied by
changing the employer from an individual to a body
corporate (25).

If it is essential to the health of miners that underground mines should be ventilated, it can make no difference whether the mine is owned and operated by an individual or by a corporation. Or, if it is essential to the welfare of a State that her laborers

should be paid their wages at stated periods, it can make no difference whether such wages are owing from an individual or from a corporation. The necessities of the laborers and the effect upon society would be the same in either case; and, hence, a classification which rested upon nothing more than the capacity of the employer, including some and excluding others, would be unconstitutional and void (26). But, of course, if the power of a corporation to contract is limited and restricted by legislation enacted pursuant to the reserved right to alter, amend or repeal the corporate charter, the corporation cannot complain. Its power to contract at all is derived from the legislative act creating it and held at the legislative will under such a reservation of power. The laborer who might offer to contract with the corporation cannot complain that such corporation has not power to contract, for his rights are not interfered with in that sense of which the law would take cognizance (27).

Laws of the general class herein are unique features of American legislation. By some they are said to be progressive; by others vicious. It is axiomatic that man was not made for the law, but law for the man; yet the organic law may be declaratory of principles of natural and inherent right which are inseparable from man in his proper sphere. The exigencies of no individual, or class of individuals, can be a sufficient justification of measures which transgress the organic law and jeopardize the guaranteed rights of every other member of the civil polity.

American liberties are lodged neither in the breast of the judiciary nor in the will of the legislative; they have a higher sanction, the sanction of the whole, the sovereign people.

GLENDA BURKE SLAYMAKER.

Indianapolis, Ind., June, 1902.

(25) St. Louis, etc., R. Co. v. Paul, 64 Ark., 83. (26) Gulf, etc., Co. v. Ellis, supra.

(27) Leep v. St. Louis, etc., R. Co., supra; Woodson v. State, 69 Ark., 521; S. C., 65 S. W. Rep., 465; Shaffer v. Union, etc., Co., 55 Md., 74; State v. Brown, etc., Co., 18 R. I., 16; S. C., 17 L. R. A., 856; Re House Bill,

BANKRUPTCY JURISPRUDENCE.

THE ORIGIN, EVOLUTION AND GROWTH OF OUR
BANKRUPTCY JURISPRUDENCE IN RELATION TO THE
ACT OF JULY 1, 1898. II. IMPORTANT DE-
CISION UNDER THE ACT RENDERED IN THE SOUTH-
ERN DISTRICT OF NEW YORK, AND THE SECOND
CIRCUIT. NOTES AND CASES BEARING UPON.

The seeds of a system of mitigating the rigor with which creditors treated their debtors, must have had its origin in the remotest antiquity. In the Jewish Constitution, which in the opinion of such a scientific historian as Niebuhr, is the oldest body of law of which we have any authentic knowledge, according to Leviticus, chap. xxv, and Josephus Antiquities of the Jews, chap. xii, section 3, the year of the Jubilee was a time of rejoicing for slaves and debtors, the former being "set at liberty," the latter "freed from their debts." Here we have the germ of an equitable principle founded on ethics, humanitarianism, and wise statesmanship. The custom known as "the restoration of land," we may note in passing, practiced during the Jubilee year, so closely resembles our modern "equity of redemption" in the law of mortgages, as to suggest more than an evolutionary outcome of ethnologic similarities. But more of that anon. The laws in relation to insolvent debtors among the heathen nations in ancient times were in accordance with the spirit of the times, characterized by the cruelest severity. Plutarch in his life of Solon, speaks of a thousand bondsmen, sold for debt. The ancient law of the twelve tables preserved by Aulus Gellius, is a model of protection to the creditor. Its only favorable feature to the wretched debtor was thirty days grace previous to his delivery into the hands of his creditor. After that, no compromise being effected, during sixty days of confinement in chains, he was subjected to public ignominy on three ninth or market days, until on the last day he was either put to death, or sold into foreign slavery. The creditors might even seize their several shares of his body. Some vestiges of this custom still existed in the Italian states long after the more humanizing influences of a milder body of law were introduced. Niebuhr well observes, that the Merchant of Venice was placed "in nexu" by his bond to Shylock - a form of legal obligation not only discountenanced by the Mosaic Law, but unknown even in the remotest times. It was a common ruse upon the part of the patricians of Rome, or some consul, in order to gain popularity to mitigate

28 L. R. A. (Mass.), 344; St. Louis, etc., R. Co. v. Paul, the rigor of the old law. About the year 494 B. C..

supra.

Charles O'Connor, long the leader of the American bar, once gave in his incisive way a useful hint to all lawyers: "A cross-examination is an amusement indulged in by the very young. It is like trying to pull the tiger out of his den. You may pull him out, or, again, he may pull you in."

during the consulships of Virginius and Vetusius, upon a revolt of the common people, the nobles were reduced to the extremity of virtually enacting a bankruptcy law. The plebeians were granted a remission of debts for insolvent debtors, the "nexum" was dissolved and the "Addicti" freed, but ordinarily the severity of the old law still prevailed except under similar circumstances, or during a financial

« SebelumnyaLanjutkan »