oughly aroused, and its wickedness fully exposed, was the evil mitigated. One of the leading actors in this tragedy was, of course, the sheriff, who was compelled upon the issuance of the writ capias ad satisfaciendum to seize the body of the debtor and imprison him until such time as he was able to discharge his debt.

A statute passed in the reign of Edward I. compelled the sheriff to keep the debtor in jail at the debtor's own expense until he shall have satisfied all arrears. On the receipt of this writ the sheriff was not allowed to take bail, and, if necessary, could call out the posse comitatus to capture and retain the debtor.

Before the passage of a statute in the reign of Henry VI., as we have seen, the sheriff was not obliged to admit to bail the prisoner. At this time, however, the injustices to debtors becoming so flagrant, a law was enacted stating that on the presentment of sufficient bail the sheriff must free his prisoner.

The sheriff was held strictly accountable for the proper performance of his duties, and was frequently sued because. of his failure, negligent or otherwise, to properly execute them. In all cases, however, he was permitted to conduct his defense, and, if necessary, could retain his personal attorney.

But the line of succession, as far as the performance of county duties was concerned, did not stop with the sheriff himself. After receiving his legacy, of tasks from the earl, it was apparent that no one man could perform in person all the functions of the office, and the sheriff was thus authorized to secure the aid of undersheriffs and officers. While this

appeared to be a necessity, still it opened the way to many fraudulent practices and deceptions on the part of the subordinates in office, besides giving the high sheriff valued opportunities for shirking his duties. In fact, according to Blackstone, most of the duties of the office

were performed by the undersheriff. This man was supposed to stay in office only one year, and originally was not allowed to act as an attorney or to perform duties outside of his office.

The sheriff was also allowed to employ bailiffs, who were supposed to collect fines, execute writs, etc., in the

county confines. These men were usually employed for their cunning, and soon became a despised class in the community.

Jailers were also allowed to the sheriff for the purpose of keeping his prisoners, and the high sheriff was held strictly an swerable if they allowed any to escape. The abuses on the part of these jailers, once very great, were restrained by statutes passed in the reigns of George II. and George III., and better provisions were made for the maintenance and keeping of the prisoners.

To-day, the duties of the sheriff in England are numerous and varied, but little remains of the ancient splendor and magnificence that once surrounded him. He is chosen annually, and is often a magistrate of the county, and anyone is eligible provided he be possessed of sufficient means. Certain persons, such as peers and the clergy, etc., are exempt from duty. His duties are both judicial and administrative. The former being to assess damages under certain land acts, and in certain other cases where the defendant has made default in appearance, and nothing remains but the assessment of damages. His ministerial duties, of course, are numerous, such as attendance upon judges, the execution of writs, the detention of prisoners, and executing the sentence of death. He is obliged to maintain a certain amount of ceremony, and is held accountable for the upholding of the dignity of his office.

Such, in brief, is the story of the decline of the English shrievalty,—an office once second to none in the county in importance, in power, in prestige, and in splendor; it has been reduced, step by step, been shorn of its strength and glory, and is now at last little more than fairs, retaining as if in feeble imitation an automatic performer of routine afof ages past, the shell of stately ceremony. As Maitland says, "The whole history of English justice and police might be brought under this rubric, the

decline and fall of the sheriff."

Beny. R.

Day

TH

to

HE great struggles for liberty recorded in history have been largely contests to determine the question as where sovereignty should be lodged. When Louis XIV. proudly exclaimed, L'état, c'est moi! he was simply asserting that absolute sovereignty resides in the Monarch, or "the Divine Right of Kings." On the other hand, the expression, "We the people . . . do ordain," etc., in the preamble to our Federal Constitution, assumes that absolute sovereignty resides inherently in the people.

After "our fathers brought forth upon this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal," the sovereignty was, in theory at least, lodged in a majority of voters. It is the theory of representative government that each statute is enacted by a majority of the voters. As a matter of fact, this is not always true, and in some states the referendum has been adopted to force a reconciliation between theory and practice. The referendum is simply a plan devised to make certain that the real sovereign has actually enacted the statute. But, for the purposes of this discussion. we may assume that every law has the direct sanction of a majority of the voters; for the question as to where the sovereignty is lodged, is wholly distinct from the question, What rights has the individual as against the sovereign? In the United States, we are attempting to answer this latter question also, and it should never be confused with the former question.

Tyranny is no less odious when the tyrant is a majority of voters, than it is when one man is sovereign. If a man is unjustly deprived of his life, liberty, or

property, he can find no consolation in the fact that a majority so decreed. It may be conceded that a majority is less likely to oppress than one man is, but that in no way relieves the one who is oppressed. Socrates, unjustly condemned by the Athenian Assembly, suffered even more than John Bunyan when persecuted by a Monarch, and Lord Baltimore with his followers suffered persecutions by a majority in the very refuge he had founded.

The American Plan.

Whether or not the founders of our government fully perceived the inevitable result of their work, they constructed the framework of a government peculiarly fitted to grapple with this question. They not only proclaimed to the world that a majority of the voters are sovereign, but they caused that sovereign to proclaim to all his citizens, present and future, that he would never exercise his sovereign power as against an individual by the establishment of a religion or by preventing a free exercise thereof, by abridging the freedom of speech and press, by denying his right of assembly or his right to keep and bear arms, by allowing unreasonable searches and seizures, by passing er post facto laws or impairing the obligation of contracts, by taking his property for public use without compensation, and, generally speaking, by interfering in any way with his inalienable rights. Of course the sovereign reserved to himself the right to change the wording of his proclamation whenever fully convinced that the welfare of the whole people demand the change. Our state Constitutions differ in detail and wording, and the restrictions named above are only such as are quite commonly found in them.

Not only has the sovereign thus placed a limit upon his own power as against

the individual, but he has established courts of justice with power to compel him to keep his word. The spectacle of a court setting aside, as unconstitutional and void, a statute regularly enacted by the sovereign, has been for years a puzzle to foreign students of our system of government.

Principles of Construction.

It soon became evident that if these specific limitations are the only protection against tyranny, then in many respects there would be no protection at all. Scarcely a state Constitution contains a specific limitation that, strictly construed, would be a safeguard against laws restraining freedom of migration and settlement, freedom of occupation, freedom to acquire and dispose of property, or against oppressive legislation on many other subjects. To remedy this seeming defect, the courts have called to the aid of the individual, the general limitations, the most common of which are the equal protection of the laws. which the Federal Constitution enjoins upon the states, and the due process of law clause of the same instrument. In this way the individual has been and is being fully protected against the tyranny of the majority.

On the other hand, it was soon found that if these limitations absolutely prohibit legislation within their field without exception, then we would have a government unable to protect the masses from many inconveniences, deprivations, dangers to health, etc., because of the power of individuals to successfully resist the sovereign power. To meet this. danger the courts have almost uniformly held that the sovereign never intended by these safeguards to devest himself of the police power, i. e., the power to compel the individual to yield to reasonable demands that the public is necessarily compelled to make. With the courts taking this liberal view in the interpretation of the Constitutions, the American innovation has succeeded far beyond even the most sanguine expectation of the early advocates of constitutional government.

Power to Amend.

However, there is yet another way of adapting the plan to meet the new conditions that necessarily arise with development. As above suggested, Constitutions If the Constitumay be amended.

tion be regarded, in this respect, as a contract between the individual and the sovereign power, it would seem, at first glance, that the sovereign has in this a decided advantage. But when we consider the fact that each voter must so vote that his rights as a part of the public must not be strengthened at the expense of his rights as an individual, we at once conclude that there is not much

danger from this source. If an individual should vote to deprive another of his rights, he is assisting to establish a general rule which in the near future may be the cause of his own persecution.

This power of amendment has not been abused, and in some cases, it has been used effectively to enforce public opinion against court decisions thought to be out of harmony with the spirit of progress.

For instance, it was held in Rodgers v. Coler, 166 N. Y. 1, 82 Am. St. Rep. 605, 59 N. E. 716, 52 L.R.A. 814, that a statute depriving a city, and one contracting with it to perform work on a public improvement, of the power to contract for the necessary labor at the best rates obtainable, violates the principles of civil liberty and the constitutional provisions protecting private property. This decision did not suit the people of the state of New York, so they amended the Constitution, expressly empowering the legislature to prescribe the hours of labor on public works (see Amendment of 1905), and caused their legislature to re-enact the statute. Later it was held in People ex rel. Engineering & Contracting Co. v. Metz, 193 N. Y. 148, 85 N. E. 1070, 24 L.R.A. (N.S.) 201, that the statute is now valid, so that the hours of labor for public work are now limited by law, and either the city or its contractor must pay the same for labor as is customary in similar grades of work notwithstanding the shorter hour limitation. Again, in Re Morgan, 26 Colo. 415, 77 Am. St. Rep. 269, 58 Pac. 1071, 47 L.R.A. 52, because of the peculiar word

ing of the Constitution of Colorado, it was held that a statute limiting the hours of working men in all underground mines and in smelters, etc., to eight hours daily, was unconstitutional. A constitutional amendment known as art. 5, § 25a, was later, in 1902, adopted by the people of the state of Colorado as follows: "The general assembly shall provide by law, and shall prescribe suitable penalties for the violation thereof, for a period of employment not to exceed eight (8) hours within any twenty-four (24) hours (except in cases of emergency where life or property is in imminent danger), for persons employed in underground mines or other underground workings, blast furnaces, smelters, and any ore-reduction works or other branch of industry or labor that the general assembly may consider injurious or dangerous to health, life, or limb."

These two instances are here selected for the reason that they involve decisions upon the one subject that has come prominently to the attention of the people, and upon which there has been considerable diversity of opinion among the courts, largely because of different constitutional provisions. Those who wish to study the questions involved in these two examples will find helpful notes, on constitutionality of legislative limitation of hours of labor on public works, in 8 L.R.A. (N.S.) 131; 24 L.R.A. (N.S.) 201, and 34 L.R.A. (N.S.) 767, and on legislative limitation of hours of labor generally, in 65 L.R.A. 33; 12 L.R.A. (N.S.) 1130, and 26 L.R.A. (N.S.) 242.

Conclusion.

From what has been said above, it

clearly appears that by a purely American innovation the rights of the public are fully protected by the police power at the same time that the rights of the individual are secure by virtue of both special and general restrictions upon the sovereign power; and that when experience demonstrates either that the power has been too much restricted or not sufficiently restricted, an amendment can readily be adopted to meet the needs or desires of the people; and that the splendid success of the experiment is due, in large measure, to the principle of refusing to allow the power that enacts a statute to be the interpreter thereof and the sole judge as to the extent of its own power.

Having introduced this innovation into the science of government, and noted its signal success, the American people will not likely abandon it and go back to the antiquated system of permitting an interpretation of a law by the same body that enacted it, even though that body be a majority of voters; or of permitting the lawmakers to enforce their interpretation upon the courts by the power of removal. It would seem that they are too progressive to step back into the condition which prevailed before the rise of the great American Republic. They will tolerate no tyranny by a King or by a majority.

John At McCracken

TH

HERE has been much written about the common law, the civil law, the statutory law, and the so-called "unwritten law," but we have another important branch of the law in the state of Mississippi, about which I do not remember of having ever seen any thing written, nor do I know of any school in which this branch of the law is taught. It must be learned by experience and observation, and it is more complicated than any other branch of the law of this land. I refer to the "negro law." Any young attorney from a foreign state might examine our Constitution and statutes and find that this was a common-law state, and that, except where it was modified by some statute, the common law was in full force and effect, and would further find that, if he was a citizen of the United States, above the age of twentyone years of age, of a good moral character, and could pass a satisfactory examination on the common law and the statutory laws of the state, he would be granted license to practise law in all of her courts, upon his taking the oath prescribed by the statutes. He might also believe himself qualified to do so, but that is where he would make a very great mistake. The law which he has spent time and money to learn, and about which he has been interrogated on his examination for his admittance to the bar, is for the white people of this state; and the law he is going to be called on to practise more than any other, especially in the early years of his practice, is "negro law," about which (unless he is native born) he knows absolutely nothing, and about which no book on earth, so far as I know, sheds the faintest ray of light.

The "negro law" of Mississippi is a law of many parts, and is composed partly of the common law, statutory law, and the unwritten law, and to be able to tell just which one of these several branches of the law applies in any given case is an art rarely possessed, except by a native born attorney. From the letter of our statutes, a stranger might justifiably infer that they applied to all persons within this state, without regard to race, color, or previous condition of servitude, but nothing is farther from the truth. The judges, lawyers, and jurors all know that some of our laws are intended to be enforced against everybody, while others are to be enforced against the white people, and others are to be enforced only against the negroes; and they are enforced accordingly.

Descent and Distribution; Bigamy.

Under our system of administering the law, a negro has the same right to acquire, enjoy, and dispose of property, both real and personal, as a white man. has, and when he dies intestate, leaving any property, it is distributed according to our statute of descent and distribution, but beyond that the rule varies and shifts from one to the other; sometimes in favor of the white man and sometimes in favor of the negro. There are some things declared by the statutes of this state to be a crime that a negro may do with impunity and never be molested, while a white man, for the same act, would get ten years in the state penitentiary. For instance, a negro may have one or more wives at one and the same time, with or without being married to any of them and no one cares; and it is not uncommon for the presiding judge to instruct the grand jury not to take any notice of it, if it should be called to their attention by any witness that might be called before them on other business. On