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the office of Van Winkle, Candler & Jay, and after an apprenticeship of nearly three years as managing clerk for that firm he joined with Mr. John O. Heald, a son of the President of the National Board of Fire Underwriters, in forming the copartnership of Richards & Heald, as a member of which he has since then been engaged in the general practice of the law, representing many of the fire insurance companies of this City in the conduct of their litigations, and appearing also as counsel for many contestants in the prosecution of the claims for insurance money against the companies.

In the summer of 1891 Mr. Richards accepted an offer from the Law Faculty of Columbia College to lecture on the subject of insurance, upon condition that a suitable text-book should be furnished by the Faculty to use with his classes. It appearing, however, after investigation into the requirements of the lectureship, that there was no text-book adapted to the purpose, Mr. Richards was requested in the month of October following to write and publish a book with a view to meeting the wants of the Law School in the course appointed for the next spring. To that task accordingly he at once applied himself, with the result that on the eleventh of March, 1892, that is to say, within less than five months after the work was begun, he placed in the hands of his class, at their first recitation, a printed volume of 626 pages, covering the branches of fire, life, accident and marine insurance, which not only met with a cordial reception from the students but which also gained flattering encomiums from judges and newspaper critics. In a review of it by a leading periodical the lecturer on the law of insurance at the University of Pennsylvania Law School makes the following comments:

"This is a book of peculiar interest and importance. It is an admirable work to put in the hands of students, for whose use it is primarily designed. It will also be of service to the profession, as well on account of its clear statement of important principles as by reason of its satisfactory discussion of the law applicable to standard fire and other policies now in common use. . A most thorough examination has convinced us that the book is a careful and scholarly presentation of the subject. It is clear and concise and even the more obstruse questions discussed are treated in such a way that they will be readily understood by the merest tyro."

Mr. Richards' volume consists of two parts, the first, a general treatise modeled after the ordinary text-book, and the second, a selection of leading illustrative cases from the reports designed to be studied and discussed in connection with the corresponding principles and propositions of the text. The author thus aims to combine the advantages of the text-book and case systems of legal instruction, thereby giving embodiment to views which find a large number of adherents in our law schools. Each method of instruction, he is convinced, has its points of superiority over the other, and these features he compares and contrasts in his preface in the course of an argument intended to demonstrate the advisability of a union of the two methods, at all events in the case of so technical and special a branch of study as insurance.

Although the plan of selecting cases to use in conjunction with text books

already independently written by other authors is not altogether novel, yet we believe that the treatise upon the law of insurance was the first original work in the field prepared with this object in view at the time of its composition. The New York Tribune said of it: "This is a manifest advance over previous systems of legal instruction. If it can be thoroughly applied to the other main branches of the law the study of that science will be much simplified, and the young law student will find the early steps of his progress much less perplexing and discouraging."

The book passed to a second edition within the year 1892, and its value to the profession at large is no doubt enhanced because of its treatment of the decisions relating to the clauses of the statutory forms of policies recently put into general use.

Besides his work as counsel and teacher Mr. Richards occupies the position of supervisory editor in the department of insurance for the American Law Register and Review.

As a lecturer in the Columbia College Law School, Mr. Richards has already attained great popularity. His course on Insurance is one of the most largely attended and satisfactory courses in the curriculum. Mr. Richards is not only a thorough master of his subject, but he possesses in a marked degree the characteristics and qualifications necessary for the successful teacher. lows out in his method of instruction the plan upon which his work was written; the student is first made to analyze and compare the leading cases in each branch of the subject, then force and clearness is given to them by a succinct and accurate statement of the law itself as he interprets it. The result is a most happy one, the student attaining not merely a knowledge of the various rules of law, but a clear understanding of their underlying principles, enabling him at once to make use of what he has learned, and to intelligently comprehend the details of the subject when his studies are prosecuted further.

INTENTION IN LAW.-A STUDY IN LEGAL EVOLUTION.

WHEN

BY PROFESSOR MUNROE SMITH.

WHEN we consider, to-day, the question of intention-the question of wrongful intent in criminal law, or in the law of torts, and the question of will or purpose in legal acts-we seldom realize how essentially modern these questions are. In early custom and law these psychological problems are absolutely ignored.

The prime motor in the development of early custom is vengeance-" the most ancient reaction against wrong, based on the natural impulse of men," as Brunner terms it. Before courts sit, or writs run; before there is anything like what we call a state or a government; at a time when there is no social organization except the levy of the tribe for war, and no authority except that of the military leader and the priest, rights are enforced and wrongs redressed by "selfhelp;" that is, vengeance is executed upon the wrong-doer by those whom he has wronged. If the offence is clearly against the tribe, that is, if some member of the tribe has rendered aid and comfort to a hostile tribe, it is the tribe itself that takes vengeance. The earliest punishment of treason is by lynch law. If the offence is against the gods, the representatives and agents of the gods, the priests, have the right and duty of avenging the sacrilege. If the offence is against the family, if a man be slain or a girl stolen, it is the family, the body of kinsmen, who pursue and slay the murderer or abductor. If the offence is primarily a wrong done to an individual, if a man receive an insult or a blow, or if any property in his possession is stolen, it is for him to avenge the wrong at his own hand. And if, in the opinion of the community, he has really suffered a wrong, his vengeance will not merely be permitted, it will be applauded. In avenging his own wrong, he is helping to discourage future wrongs against others. He has fought, indeed, in the first instance for his own hand, but he has fought the battle of all. It is chiefly through such private vengeance that wrongs are righted in primitive society, and that rights acquire shape and consistency. It is the desire for vengeance that creates primitive custom, and it is through the practice of revenge that primitive custom hardens into law.

One thing that strikes us very forcibly, in early custom, is that the right of vengeance attaches to all harm done, to all injury suffered, without the slightest regard to the intention of the party who has inflicted the injury. If to-day-to take a case that may appear extravagant, but that illustrates my point-if to-day a man falling from a window or a scaffolding, should fall upon one of us, we should feel, if we had any consciousness left, a momentary reaction of anger against the person thus assailing and battering us; but the first instant of reflection would assure us of his innocence of any malicious purpose, and, if he had suffered more than we, the next feeling would be one of pity for him. But in the early history of our race the reaction of wrath and the desire of vengeance are not so tempered. Among primitive men the reaction against injury is as blind

as the impulse of the child who beats the chair against which he has stumbled. In primitive society the reaction of wrath attaches to unreasoning animals and even to inanimate objects that have inflicted injury; to the dog that has bitten one, for example, and even to the axe that has fallen from its support on the wall and wounded a man sitting beneath; and what is more curious, the right of vengeance in primitive society runs against the possessor of the dog or the axe, irrespective of all fault on his part. Because the instrument of injury is his, he is responsible for the injury and therefore liable to vengeance. He can, indeed, free himself by abandoning the instrument of the wrong; and so arises the noxae datio of the early Roman law. The man whose son or slave or dog has injured another man, is responsible for the injury, unless he delivers up the son, slave, or dog to the injured party. Another course that is sometimes followed in primitive society, another way in which the owner of the instrument of injury can shed all responsibility and free himself, is by the consecration of the thing to the gods; a practice in which Justice Holmes finds the origin of deodand.

When such a reaction of wrath against even inanimate causes of suffering was approved by primitive men, and clothed with legal sanction, we shall not be surprised to find that the right of vengeance ran against the man, who, by inadvertence and without wrongful intention, had taken another's life. "Whoso sheddeth man's blood, by man's hand shall his blood be shed," was a rule that originally knew no exception, not even in favor of the innocent homicide. We have the clearest proof of this in the indirect methods adopted to shield the innocent manslayer, when it first began to be felt that such indiscriminate vengeance was wrong. This more humane feeling appears first in the priesthood-the leisure class, and therefore the progressive class, in all early social development-and it is the priests who first find methods of protecting the innocent shedder of blood. So among the Hebrews, cities of refuge were eastablished under priestly influence; and so, in the early Roman law, we find that the principle of vicarious sacrifice was introduced by the priests. We read in the Twelve Tables that the innocent manslayer is to sacrifice a victim to the ghost of the slain man, and, having done this, is free from vengeance. It was long, indeed, before this period, in which the innocent manslayer is protected by relig ious devices, was overpassed; it was long before the idea was thoroughly worked out that no man is the just object of vengeance save him who has done harm purposely; and yet it was first in criminal law that intention was taken into

account.

Let us

In other fields of the law intention was more slowly recognized. take, for example, the evolution of contracts. The oldest of all contracts seem to be those between men and their gods. The oldest form of contract seems to be the vow. We do not commonly regard a vow as a contract; but in early society vows to the gods are always conditional, always dependent upon the acceptance of the vow by the deity, and upon some performance on his part. The vow, in fact, is simply an offer to contract. In these oldest contracts intention is disregarded, and the promisor is held strictly to the words of his vow. Jephthah vowed that if the Lord would give him

victory over Ammon, he would sacrifice to the Lord whatever should first come forth from his house when he returned in peace. Jephthah did not mean to sacrifice his daughter. But that made no difference; he was held to the terms of his vow, nor did it even occur to him to plead his lack of intention; "I have opened my mouth unto the Lord," he says, " and I cannot go back' (Judges x : 35). The lesson inferred by the wise Hebrews was that one should be cautious in making vows; but, if made, they must be strictly observed. "When thou vowest a vow unto God, defer not to pay it, for he hath no pleasure in fools; neither say thou that it was an error: wherefore

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Such vows as these were, I think, the earliest contracts, and they seem to be the parent of the purely human contract. We know at least that, among many people, the earliest agreements creating obligation were religious in their character; that they assumed the forms of the vow, or were at least corroborated by oath; and among many peoples we find that the earliest forms of contract were worked out by the priests. We find always that no obligation can be created except by the use of the traditional forms, and we find in all early law that the formula once recited creates obligation, no matter what the intention. To-day it is a truism that words spoken in jest create no obligation, but in primitive times it was no joke to recite a formula of contract. To-day it is a truism that a formula recited for the purpose of instruction creates no obligation. Here again the case was otherwise in primitive law. I find a case in point in the Icelandic saga of Njal; and it is a case so interesting in itself, and so perfectly illustrative of my point, that it seems worth reciting.

The case is one of a summons to the Althing or popular court; and it should be premised that, in early Scandinavian custom, summons, it would seem, had to be reciprocal; not only must the plaintiff summon the defendant, but the defendant the plaintiff. These cross-summons, I think, constituted a contract on the part of plaintiff and defendant to bring their quarrel into court; and without such an agreement no Scandinavian could be forced into court nor deprived of his natural right to settle his quarrels in the natural way, i. e., by feud. This construction is, I admit, hypothetical; but it tallies with the law of evidence in the old German court, according to which no proof could be introduced save that which the parties had previously agreed to admit. (Brunner, Deutsche Rechtsgeschichte, I., pp. 180, et seq.) It tallies also with Jhering's theory that jurisdiction in civil cases among the Romans grew out of arbitration, and rested originally on the agreement of the parties. (Jhering, Geist des römischen Rechts, I., pp. 167, et seq.) And it explains the origin of the theory, held equally by Roman and English lawyers, that the obligation created by a civil judgment is an obligation ex contractu. At all events, if summons did not have to be reciprocal, there is no point in the story I am about to cite from the saga of Njal, and there is no reason for the stratagem devised by Njal and executed by Gunnar. If, on the other hand, summons really had to be reciprocal, the trick was a most ingenious one; and it is easy to understand why it was long remembered and incorporated in the great law-saga of Iceland. This story is briefly as follows:

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