be entitled to restitution of the subject of a commercial adventure in books, the purpose of the shipment in question gives to it a different character. The United States, in prosecuting hostilities for the restoration of their constitutional authority, are compelled incidentally to confiscate property captured at sea, of which the proceeds would otherwise increase the wealth of that district. But the United States are not at war with literature in that part of their territory.' He then referred to the decision in Nova Scotia, and to the French decisions upon cases of fishing vessels, as precedents for the decree which he was about to pronounce; and he added that, without any such precedents, he should have had no difficulty in liberating these books." The Amelia, 4 Phila., 417.

These changes in the usages of nations naturally first became known to the Executive Department of Governments. In the nature of the case the Executive is more flexible in its action than the Judiciary. The respect which is paid to precedent may differ in different nations. But the tendency in every nation is that an organization of a permanent character will adhere to its traditions. In civilized countries no organization is more permanent than courts of justice. In none is the disposition to adhere to tradition or precedent stronger. The danger is that Courts will adhere too closely to traditions, and that the law will thus tend to crystallize and become rigid. A wise system of law, however, should be flexible, and grow with the growth of nations. To use the language of Prof. Lawrence, of the University of Cambridge (“ Principles of International Law"; preface):

"International law may be regarded as a living organism which grows with the growth of experience, and is shaped in the last resort by the ideas and aspirations current among civilized mankind."

The same is true of other branches of the law. In reference to equity jurisprudence as administered in the Court of Chancery, Lord Chancellor Cottenham says1:

"I think it the duty of this Court to adapt its practice and course of proceeding to the existing state of society, and not by too strict an adherence to forms and rules, established under different circumstances, to decline to administer justice and to enforce rights for which there is no

Walworth v. Holt, 4 Mylne & Craig, 619, 635.

other remedy. This has always been the principle of this Court, though not all times sufficiently attended to."

Chief Justice Gibson, an eminent American jurist, delivering the judgment of the Supreme Court of Pennsyl. vania, uses the following language1:

"It is one of the noblest properties of this common law, that instead of moulding the habits, the manners and transactions of mankind to inflexible rules, it adapts itself to the business and circumstances of the times, and keeps pace with the improvements of the age.'

It is a misfortune to any nation when this growth ceases. Fortunate, indeed, is that country whose courts are so enlightened as to hold the happy mean between that fickle temper which is destructive of stable institutions, and that ultra-conservatism which deprives a nation of the unspeakable benefit of a system of law adapted to its needs and growing with its growth.

EVERETT P. WHEELER.

1

1 Lyle v. Richards, 9 Sergt. & Rawle (Penn.), 322. See also Holden

v. Hardy, 169 United States Reports, 366, 385, 388.

THE MODERN LAW OF REAL PROPERTY IN NEW YORK.

HERE in New York, as elsewhere, the actual conditions of the law of real property are the result of certain historic forces. Although originally a Dutch settlement, New York, soon after the English conquest in the year 1664, possessed a system of laws and institutions much more closely resembling those of England than those of New England. When the English had subdued New Netherland, they at once promulgated the laws of England with an explicitness not observable in the other American plantations. It was obviously the intention of the governing authorities to get rid of the Dutch laws as soon as possible. Consequently few of them survived the year 1700, and those only by force of treaty or compact. For a time after 1664 the Dutch ante-nati had a sort of personal, as contradistinguished from the territorial, law. 1 With the death, or the naturalization, of the ante-nati, their personal law disappeared, and now but three or four unwritten laws of Dutch origin linger on in the jurisprudence of New York.

Not only the laws, but the institutions, of England flourished in New York, and when the War of Independence broke out, even the manorial system of England had taken firmer hold and borne better fruit in this province than elsewhere in America, with the possible exception of Prince Edward's Island, in the Gulf of St. Lawrence, where it lasted until very recent days. Land in the Province of New York was all held of the Crown, by the tenure of free and common socage, as of the King's Manor of East Greenwich, in Kent. The first Constitution of the State not only

1Cf. Savigny, Roman Law in the Middle Ages. London, Edit. 1829, p. 99.

2 Prince Edward's Island presents the first instance of a legislative expropriation of landlords. This was followed afterwards by the Irish acts, where the proceedings in Prince Edward's Island were closely followed by the law officers of the Crown.

expressly adopted the English law of real property in force in the Province of New York at the date of the battle of Lexington and Concord, but it also confirmed all existing estates in land, held under Crown grants.1 Thus, by a series of enactments the English law of real property in force in the Province of New York was translated into the new order of things.

While the common law of England furnished the law of estates in New York until the War of Independence, there were even in colonial days some few points of departure in non essentials. The simpler economic and social conditions prevailing in a colony did not require the elaborate legal machinery of the parent State and there was a visible tendency in New York to resort to the simpler and more ancient phases of the national law. Sugden, in his intro. duction to Gilbert's "Uses and Trusts," states that "simplicity was the striking feature of the common law, in regard as well to the estates which might be created, as to the modes by which they might be raised." It was not until about the year 1700 that an increasing subtlety and complexity in the forms of conveyancing began to set in in England. But the colonies-and New York was no exception-generally ignored these late inventions of the English conveyancers, adhering to the simpler and more antique modes. With this exception the English law was generally followed, and one of the first law books published in New York was an original "Essay on the Theory and Practice of Fines." On most other subjects the Bar depended wholly on the old English law books, and there were some admirable conveyancers and "black-letter lawyers" among the colonial barristers of New York.

A French jurist, Ortolan, has observed that political revolutions make few changes in the outward forms of laws and institutions, but that they sow the seeds of immense and comprehensive change. The truth of this observation

1 Secs. xxxv, xxxvi, Constitution of 1777.

2 Sudgen's Gilbert. x London Edit., 1811.

3 Wood, Preface to the "Institute of the Laws of England." London Edit., 1772. Lord Mansfield in Case of Buckworth, in the K. B., I Hargrave's Collectanea Juridica, 335.

4 By William Wyche; published by Rivington, New York, 1794.

is apparent in the instance of New York. The revolutionary government by resolutions simply transferred the "seigniory" and the " quit rents" of the Crown to the political abstraction, called the State.1 The lands themselves long continued to be held of the State as successor to the Crown and by the tenure of free and common socage. Not until the year 1787 was any part of the lands in the State declared to be allodial and then only that portion newly granted under the great seal of the State. It was not until 1830 that the Revised Statutes finally abolished tenure and declared all lands allodial. 3

Prior to the year 1830, the reforms made in the common law of real property had not been very radical, if we except the law abolishing primogeniture, and establishing new canons of descent. It is true, fees tail, or estates tail, had been converted by an act of the Legislature, passed in 1782 into fees simple." But as that act simply accomplished what might be then accomplished by a disentailing assurance, the particular reform was not very marked or consequential.

That the English law, which continued the basis of the land law of this State, was largely feudal in origin is very familiar, as it is conceded by all the commentators. It has been truly said "that the most elementary conceptions of the English law of real property carry us back to the relations of lord and vassal, and cannot be understood without reference to them." At the time of the adoption of the first constitution of this State," the feudal origin of the contemporaneous English land law was much more apparent than at present, when juridical theories of "contract” have come to dominate those archaic legal obligations once due to "status." Sir Henry Maine has emphasized the fact "that the movement of all progressive societies has been a movement from status to contract. The truth of this

1 Journal of Provincial Convention I, 554; 1 J. & V., 44, Sec. 14.

4 1 J. & V., 245. C. 2, Laws of 1782. C. 12, Laws of 1786.

5 C. 2, Laws of 1782; Chap. 12, Laws of 1786.

6 April, 1777.

7 Maine Ancient Laws, 165.