Historical outlines of the law. plaint to the ordinary or visitor. After the | to hold them and their heirs in fee statute of Quia Emptores, however, no simple, in fee tail, or for term of life, gift in frankalmoine could be made by &c., at the will of the lord, according any one but the King. The tenure of homage ancestrall received also a severe check by this statute. In this reign the number of these holdings were very few in number. Homage was only done by such as had as estate in fee tail, or in fee simple, in their own right, or in the right of another. Homage was done only once in the tenant's life; therefore, although he was obliged to do fealty to the heir of his lord, he was excused from homage. If a man became tenant by the courtesy, he was obliged to do homage; but if the wife died before he had done so, he was not to do homage, because he had but an estate for life. Homage could only be done to the Lord in person. Fealty was incident to all manner of tenure, except in frankalmoine, and was frequently to this tenure. A tenant at will did not do any fealty, but those who held by copy of court roll, or by the custom of the manor, were to do so. Tenures in villenage were distinguished as pure villenage, and villein socage or privileged villenage. Pure villenage was was where the tenants held small por tions of land to do base services, as to plough the lord's land, &c. The service in this instance was uncertain. Tenancy by villein socage, or privileged villenage, was when the tenants, though themselves free, held their lands by base services. In the reign of Henry V. it appears that the tenure per copie, or as it was afterwards called copyhold, was first recognized, because there was no other evidence on the title, but the copy of the court roll. The modes of surrender varied according to the customs of the different manors, sometimes by the delivery of the verge, or rod, to the bailiff or steward. Tenants by the copy of the court roll, could only plead or be impleaded in the lord's courts. Littleton thus describes this species of tenure: "Tenant by copy of court roll, is where a man is seized of a manor, within which there is a custom that has been used time out of mind of man, that certain tenants within the same manor have used to have lands and tenements to the custom of the same manor." Rent (redditus, a return) as Mr. Justice Blackstone describes it, is "A certain profit issuing yearly out of lands and tenements corporeal." Rents were formerly divided into redditus albi, white rents, when the rent was paid in silver, and redditus nigri, black mail, when the rent was paid in work; grain, or base metal. Rents were also divided into rent service, which was, where a tenant held by homage, fealty, or any other service, a certain rent. If such was not paid on the day, the lord might, by the common law, distrain for it. Rent service is where the whole interest in land has been assigned by deed with the reservation of a rent thereout, which also contains a clause for distress in default. Rent seck is where the grant is made without any such clause of distress. The word estate, derived from the latin status and sto, signifying that which was fixed or permanent. Estates in fee, (which word is a corruption of feud) were divided into fee simple, equivalent in signification to an absolute inheritance; and in fee tail, which was only a limited inheritance from the word talliare, to cut. An estate in frankmarriage, was where land was given with a wife, without any other limitation, being an estate to the husband and wife, and the heirs between them begotten. A tenancy by the courtesy was when land was given to a woman, and a child was born, the husband after the death enjoying it by this tenancy. There were at this time five species of dower, namely, by the common law, ad ostium ecclesiæ ex assensu patris, by the custom, and dower de la pluis belle. The law concerning tenants for years, had undergone no great alteration since the time of Bracton. Small leases might be made by deed or without; and if there was a remainder over for life, in tail or in fee, the lessor was obliged to make livery of seizin for years. In truth, A recent number of the "Law Report-pects, have those of the court-And yet it would er," a monthly periodical, printed in Bos- be hard to say, that the workmanship exceeded the ton, has just been placed in our hands, by material- materiam superabat opus. a friend of ours, by whom also our atten- both are ordinary. Now we do not presume to tion has been called to a most singular pass judgment upon the merits of the supreme article therein published, under the above court of Maine, in the practical administration of head, the same being the title of the last affairs. No distant murmur has reached us with volume of our State Reports, this strange regard to the manner in which they have held " the article seems to be a sort of punitory homi- balance and the sword." The practitioner and ly upon the Jurisprudence of Maine- suitor perhaps retire from their presence content. from which we make the following ex- We can only regard the court from without. We tracts for the innocent amusement of our are strangers to them. We see them only in their readers. Here, read and mark the ease judgments, which are published to the world. It and conscious dignity with which the is so that they must be seen by all who do not apwriter disposes of the Bar in Maine, the pear before them. It is so that they must be seen Reporter of our decisions, and the Judges by posterity. Looking at these with every dispo of the Supreme Court. Hear him. sition to find some loop on which to hang a favor. able opinion we are obliged to express our reluctant sense of their worthlessness, as contributions to the science of jurisprudence. The discussions at the bar seem to be meagre, and for the most part occupied by references to the local decisions merely. It is said, however. that the reporter, assuming a licence to stultify the bar, does not adequately present the learning and fidelity of their arguments; though of this we cannot judge. The opinions of the judges, are, if possible, more meagre than the discussions at the bar. They are not commended by learning, by aptness of expression, or by happy or careful expositions of the reasons on which they are founded They are "dry" decisions, calculated merely to range among the precedents of the law. It must be only in a corner and in darkness, that any light from them can be discerned; as in obscure places, on the banks of the Nile, the eye may sometimes detect from ancient fish-bones a phosphorescent flame. In the eye of jurisprudence, the recent judgments of the supreme court of Maine are little better than fish-bones." "Two Reporters of unquestioned learning and ability have been compelled at different periods, by the iron hand of party in Maine, to yield the post which they adorned, to others, whose political opinions found more favor with the majority. Mr. Greenleaf was pushed from his stool by Mr. Fairfield; and afterwards Mr. Appleton, whose various attainments and singular fondness for jurisprudence cannot be mentioned without praise, was obliged to make room for Mr. Shepley, whose last volume is now before us. Amidst the hoarse sounds of party, which fill this state, reminding us of Dante's picture of the melancholy voices with which the air was laden in some of the circles of the Inferuo, it is hardly possible that any suggestion from us will be heeded. Still, in the name of * We readily give insertion to this communication. As the matter is in very able hands, it would be idle on our part to offer any comment. Massachusetts v. Maine. To which the editor of that work sub- | ful mind, should now be treated as grave joins the following note:— "We deem it proper to state, that the notice of the Maine Reports, in our present number, was written by a gentleman fully competent to express an opinion on the subject, who never lived in Maine, and has no personal knowledge of the court there." There such is the dire fate of the XXI. Volume of Maine Reports. It was long ago declared in prophetic language that" it shall be when thou hast made an end of reading this book, that thou shalt bind a stone to it, and cast it into the midst of the EUPHRATES," but this Boston writer, having as it should seem," in a corner and in darkness," made a hasty and unsuccessful effort to examine the recent volume of our reports, and to ascertain and comprehend the legal principles therein discussed and decided, rushed petulently with the book under his arm, from the proper orbit of his just pursuits, till at length, illuminated by "the fish bones" he discovered the banks of the Nile, and rushing onward, he rashly submerged the unexplored volume in its inundating waters, and then-returns home to record the catastrophe in the columns of the Law Journal. There may be nothing in this costive article itself, alone considered, calling for any notice what ever at our hands; indeed our first impression was that some one of our precocious young lawyers, admitted under an act of our legislature, some scullion, who might well "be sung and proverbed for a fool, in every street." not having succeeded in some maiden effort, had under the excite ment of the moment, sought to gratify his spleen upon the Court, by appearing as their public accuser; but when it is recollected that the article is published in the "Law Reporter," a highly respectable monthly, whose circulation, we are told by the publishers, "is three times greater than any law periodical ever published in the country," and when the editor deems it necessary to accompany its publication with a manifesto that the writer "never lived in Maine, and that he is a gentleman fully competent to express an opinion on the subject," surely that which at first might have been very naturally regarded as the erratic lucubrations of some youth and serious charges, entitled to a careful consideration. We learn that the name of the putative author, is that of a gentleman who has long been favorably known to the legal profession as a lawyer and a writer,—as a "gentleman of excellent breeding," "of admirable discourse," "of great admittance," "authentic in place and person," generally allowed for many war like, court-like, and learned preparations." His homily contains four distinct and separate charges. The first is against the members of the bar in Maine, whose discussions seem to him to be meagre, and for the most part occupied by references to the local decisions merely. The second is against the Court, "whose recent judgments, are, in his opinion, little. better than fish-bones.-The third is against the reporter, whose labors, he says, have very little to commend them;" and the fourth and last, is against the State itself, which he thinks is so filled with party spirit, that no suggestion from him will be heeded here. Fearful charges these-and they are either true, and therefore just, or they are untrue, and for that reason uncandid and unjust; if true, then the people of Maine are called upon by every consideration of private and public justice, to enter immediately on a thorough deep and effectual reform-by raising higher the standard of legal qualifications and professional talents, by inspiring and encouraging a nobler ambition at the Bar, and by thoroughly purging the Judicial Bench-to the end that the Jurisprudence of our rising State may, as it certainly should, compare favorably with that of the proudest sister States of the Union. Is the first charge true? Here it should be remembered that the diversified and changing business of the country, the vigorous habitude of our people, and the corresponding energy and promptitude with which every department of professional life, here, is necessarily characterized, leave no considerable opportunity for the practising Lawyer to indulge in more extensive and elaborate discussions at the Bar-wherein the principles of our own laws might be traced back very agreeably, through the early history of our common law-the instructive analogy of foreign codes, and the pure morality and richer illustraations of the Massachusetts v Maine. Is the second charge correct? In the first place, to whom particularly does the writer refer, to our present Judges, or their predecessors on the Bench, or to both and all? He manifestly intended, we think, the present Judges alone, for his subject was the 21st volume of the Maine Reports, and he distinctly says "the recent judgments of the Supreme Court of Maine are little better than fish-bones." It was certainly kind in him, and for which he deserves our gratitude, to spare all our former Judges, and to permit them at least to enjoy, unimpaired, their hard earned reputations, secured to them by untiring labors, by moral worth, professional learning and Judicial talents. The present Judges, therefore, are alone his personified fishbones. Who are these incompetent Judges? civil law, to the distant fountains of Juris- | present Judge of the United States Disprudence-which is always evincive of trict Court, for the District of Massachugreat labor and research, but not unfre- setts-Hon. Peleg Sprague; the Suffolk quently attended by an inflated learning, Bar, with a distinguished member-Hon. manifestly quite beyond what may be Johnathan P. Rogers, a sound lawyer, necessary to a correct presentation of and an able advocate, and this Law Rethe legal points, involved in a given porter, with a persevering and efficient case. Such efforts, though always de- Editor-and still we have left many other sirable enough to the student, the gene- gentlemen of sound learning and ability, ral reader, and the scholar, are often who are nobly sustaining and upbuilding times, very justly regarded rather as the the profession here, by the fidelity of their artificial frame-work, and fashionable purposes, the integrity of their principles, drapery of the cause, than as valuable and their substantial learning and forensic contributions to the substantial stock of eloquence. accurate legal learning. But after all, it will be found, we trust, upon a candid examinatian, that our lawyers have usually brought to their causes good sense, sound legal learning, an accurate apprehension of the legal analogy between the adjudged cases and the one in argument, and adequate forensic ability in presenting and enforcing their positions, upon the consideration of the court; and it is fearlessly contended, that the several volumes of our Reports furnish no evidence to the contrary. There is another manner of determining the character of our Bar-it is by comparison. This Boston writer seems to have been acquainted with one of them, John Appleton, Esq., and to have formed some just estimation of his professional character, for he speaks of him, as "a gentleman of unquestioned learning and ability, of various attainments, and singuWho is our Chief Justice? He lar fondness for jurisprudence"-in all is the Hon. Ezekiel Whitman, L.L.D., which the writer is correct--and he may who received his education at Brown Uninow be informed that Mr. Appleton be- versity. After completing the usual prelongs to a highly respectable class of law-paratory legal course, and after being adyers in Maine, numbering more than fifty, either of whom is of as "unquestioned learning and ability" as he, and who, with him, would do credit to the legal profession in any age, or in any country. Ortake, as a worthy standard, the Bar in Massachusetts -where, in the judgment of the Boston Law Reporter, every body is great and good-we have occasionally improved opportunities to witness in person, the efforts of different gentlemen of the Suffolk Bar, at Nisi Prius trials, as also before the full court. It is an able Bar, and so is ours. We have already furnished the parent Commonwealth with a professor of law in Harvard University, Simon Greenleaf, Esq., the able author of a most accurate work, on the law of Evidence; with the mitted to the Bar, he established himself in Maine, and soon entered into an extensive practice-He was for a time a Representative in Congress, a member of the Convention that formed the Constitution of the State, and subsequently one of the Judges of the Court of Common Pleas, and the District Court, and having in all these important positions, through every period of active life, enjoyed largely the confidence and esteem of his fellow-citizens, being everywhere distinguished for sound judgment, a strong legal mind, and varied attainments, he was finally-and very justly-elevated to the high judicial office, which he now adorns. Who are the associoted Justices? These are Hon. Ether Shepley, and Hon. John S. Tenney. Massachusetts v. Maine. Judge Shepley, having been graduated at Dartmouth College, and duly admitted to practice, came early to the Bar in Maine, where he soon distinguised himself for fidelity, ability and professional acumen he was during a considerable period, U. S. D. Attorney for the District of Maine, and subsequently a Senator in Congress, and from this last station he was called to his present seat on the Bench, to which it is believed, he brought all necessary qualifications for the discharge of its duties, with credit and honor. Judge Tenney, was educated at Bowdoin College, and read law in Maine-where he afterwards commenced practice, under auspicious circumstances, and by able and judicious efforts in the discharge of professional duties, he soon enrolled his name, high up, on the list of our soundest lawyers and ablest advocates, and was in the full fruition of a high reputation, when he received his appointment as one of the Associate Justices of the Supreme Judicial Court. With such a Court of ultimate resort, it might well be considered that the Jurisprudence of the State must be entirely safe; and so, once thought this self same Boston Law Reporter, for in its 4th volume, on page 365, a long article touching the character and qualifications of these gentlemen, then recently appointed, is concluded in the following just language "In conclusion, we have pleasure in believing and affirming that this Court will take a high and honorable position among the judicial tribunals of our country. Learning, integrity, dignity of manners, and public confidence ensure to it, honor, to the public security, and to its decrees, respect." Such is the Court. What is the complaint? It is not that any of the causes that have come before them, have been determined in any manner, whatever inconsistent with the laws of the land; but it is substantially this-that while all their decisions are in strict conformity with the legal principles involved in the respective cases, yet their judicial opinions are not extensively fortified by a learned array of authorities, or always adorned by classic felicity of style. Few persons in, or out of the State, are fully aware of the extensive and arduous labors of this Court. No three men are compelled to work harder. So much time is absolutely required in jury trials, and at the law terms, that the vacations afford, as we are informed, and we believe truly informed-but about two days to each Justice for each cause,― that is two days, in which to review the arguments of counsel, examine the authorities cited, make all further nécessary investigation, and prepare and write out an opinion, in the case assigned to him, and in the very same time to read and examine two opinions drawn up, in the same period, by 'the other Justices in other cases in their hands, and to certify his concurrence, or dissent. No person, having the slightest acquaintance with the subject, can fail to perceive that no sufficient opportunity is thus afforded for the preparation of elaborate and learned judgments; and indeed it is most clearly true that the indispensible labors of the Court require the services of at least one additional Judge; yet overpressed with these burthens and circumscribed as to time within the narrowest limits, the judgments of this Court always exhibit accuracy, legal precision and a just disposition of every cause, while in some instances, where causes have demanded more elaborate investigations, their reported judicial opinions bear evidence of deep and patient research, and of accurate and extensive learning, which have already secured to it "a high and honorable position among the Judicial tribunals of our country?" For ourselves we have heard but one complaint here-it has occasionally been thought that in the prompt disposal of business, the Court may sometimes have adopted, too hastily, the recent decisions of the Supreme Court of Massachusetts, without sufficient personal examination into the principles themselves, upon which such decisions are assumed to be grounded, unmindful, as it might seem, for the moment, of the la mentable fact, that the Judicial Bench there has long since been bereft of the revered Parsons and Parker, those distinguished jurists, who gave bones and sinews, soul and body. life and being, to the jurisprudence of that Commonwealth, and to the earlier judgments of that highly respectable Court. On the whole, we think we have much occasion for congratulation,—and it may afford the Boston writer some consolation, to know that the labors and honors of our District Court are at present sustained by Judges as able, |