(d) Certificate of inheritance. As above mentioned, administrators and testamentary executors are appointed only in exceptional cases, and the opening and publication of wills establishes nothing as regards their validity. On the other hand the land registration courts, when applications are made by pretended heirs, are obliged to examine into their legitimate rights, and when they register rights in realty in favor of wrong heirs the state becomes responsible for damages. Like duties are imposed upon savings banks, governmental officials who are asked for pensions of a deceased person, and the like. So there must be a way for these authorities to ascertain the right heirs. This is done by the certificate of heirship given as well to legal as to testamentary heirs by the probate court. The applicant for a certificate has to state the date of the testator's death, the relationship upon which his right of inheritance is based, whether any person excludes him from succession, or any will exists, and whether any action relating to his right of inheritance is pending. All these declarations must be given under oath and be justified by public documents; for instance, as regards birth, marriages, and death. The court takes all evidence necessary to ascertain the facts, and makes the co-heirs join the declaration of the applicant, and also swear under oath. When the court is convinced of the correctness of the alleged facts, it issues a certificate of heirship. The legal effect of this certificate consists in the presumption that the person who is named as heir in the certificate has the right of inheritance therein stated, and any bona fide person transacting business with the stated heir is protected. Therefore, when the certificate of heirship has been obtained by error or perjury, the wrong heir can transfer the title to a bona fide third person. Provisions are made to cancel the certificate when its incorrectness becomes known.

4. Registration for Different Purposes.

(a) Marriage contracts. Marriage in Germany has no effect upon the estate of the husband or the wife as to the title of property; but on the completion of the marriage the property of the wife becomes subject to the management of the husband, who takes the revenues of this property as a contribution for the

court of the last-described character are in nearly all German states more or less thoroughly performed by notaries who act to that extent as probate courts, with power and authority given by law.

1 Civ. Code, §§ 2353 et seq.

maintenance of the family. Things intended exclusively for the personal use of the wife, like clothing, ornaments, and working implements, and various other things are exempt from the management of the husband, and remain the separate property of the wife. All personal property which is in the possession of the husband or of the wife, except the wife's personal outfit, is generally presumed to belong to the husband.1

The legal state of affairs can be modified at any time by marriage contracts between husband and wife; either wholly excluding the management of the wife's property by the husband or, on the other hand, creating a more or less complete community of property. The change of the legal state of affairs is made by the agreement and nothing further is necessary. But any third party, if bona fide, is entitled to assume that the statutory rule applies and is therefore protected, unless the modification or exclusion of the statutory régime is registered in the prescribed manner in the district court of the domicile of the husband.2

(b) Commercial matters. The German Commercial Code has the character of a special statute enacted on the basis of the Civil Code and amending or enlarging its provisions for the purpose of giving greater facilities for the transaction of purely commercial business. In so far, merchants, their agents, commercial partnerships, or share companies, may be regarded as a class favored by the law. On the other hand, persons taking part in commerce are subject to certain legal restrictions which do not exist in the general civil law. Merchants doing a large business must file the signature of their firm, with any further details, in the district courts where their main establishment or any branches are located. Powers of procuration given to commercial agents must be filed, and similarly commercial partnerships and share companies must be registered. The purpose of this registration is to make known all persons and corporations engaged in commercial transactions, and to protect all persons who rely on the correctness of the commercial register. The registration of the share companies has even a greater effect. It creates the corporation. Persons neglecting to file their application for registration can be fined by the district courts.4

(c) Mines and ships must be registered in the district courts. 2 Ibid. § 1435.

1 Civ. Code, §§ 1363 et seq.

8 Commercial Code, §§ 29 et seq, 53, 106, 200, et al.
▲ Ibid. § 14.

Registration is governed by principles similar to those applicable to the registration of land.1

(d) Artistic models are only protected when registered in the competent district court.2 The registration of patents and trademarks is not done by the district courts but by the patent office in Berlin.3

The effect of registration, as shown above, varies in different cases and depends upon statutory provisions. Sometimes the registration creates a mere presumption of the existence of the registered rights or facts; e. g., the registered owner or the stated heir is presumed to be entitled to his rights. Or the registration protects third persons who deal with the registered persons and rely on the correctness of the register; as in the case of the commercial or marriage register. This protection sometimes goes so far as to give to third parties a legal title where their grantor was registered without legal reason, as in the case of the land register or certificate of heirship. In this case the register is said to have public faith (öffentlicher Glaube). Or by registration the right is protected against violation or limitation, as in the case of artistic models. Or, finally, by registration, the right in question is created; as in the case of share companies, or of real rights which are created by the combined operation of agreement and registration.

All legal requirements have to be examined before the judge orders the clerk to make an inscription of the right in question. As we have seen, if negligent, the judge makes himself responsible. 5. Judicial Authentication of Instruments. Written statements are used in law for a double purpose: either to facilitate the proof of the facts therein stated, without the necessity of calling witnesses, (Beweisurkunden), or to create the validity of the stated rights which would be void if not made by instrument (dispositive Urkunden). This latter purpose of creating rights by written statements was unknown to the old Roman law, where documents were only used for proof; but in the Roman law after about the fifth century, instruments constituting rights came into use.*

Instruments are of two kinds: writings authenticated by public act and private writings. The origin of the first kind is to be found.

1 Mines are regulated by state laws. Cf. Statute introducing the Civil Code, art. 67. As regards ships, see Statutes of June 22, 1899, June 15, 1895, et al.

2 Artistic Models Copyright Act of Jan. 11, 1876, § 9.

3 Patent Act of April 7, 1891; Trade Marks Act of May 12, 1894.

♦ Brunner, Zur Rechtsgeschichte der römischen und germanischen Urkunde, 147, 61.

in the law of the Franks, where already the court, besides other officers, was invested with the power of authentication.1

The modern German law shows three kinds of instruments:

(a) Writings under hand (private Urkunden). The form of a written statement is necessary; e. g., for the contract of suretyship, for the acknowledgment of debts, etc., which would be void without that formality. Witnesses, sealing, and delivery are usually not required for the creation of such rights.

(b) Writings acknowledged before a public official (öffentlich beglaubigte Urkunden). The law prescribes that some written statements be acknowledged before a judge or a notary. The acknowledgment consists of the statement given by the judge or notary that the signature of the instrument has been given or acknowledged in his presence. This form of written statement is generally prescribed for the purpose of inscription in public registers.2

(c) Instruments authenticated by public act (öffentliche Urkunden). The public act consists of declarations made before a judge or notary who takes the record of it. Therefore this authentication is not limited to the signature, but covers the whole transaction. This form is generally required for transactions relative to family relations or creating inheritance rights.

The Civil Code in prescribing the form of public acts generally gives a choice between authentication by judge or by notary, but the states are entitled to give these functions to the notaries only, and this has been done in many parts of Germany.

The foregoing description covers only the main functions of the district courts on matters of non-contentious jurisdiction, and does not claim to be complete. Besides this, the district courts act in contentious matters.5 Their jurisdiction in criminal matters includes all police contraventions and a number of misdemeanors. In civil matters their jurisdiction generally depends upon the value of the object in question. At present their jurisdiction goes to the value of 300 marks, but a bill has been prepared which would enlarge their jurisdiction to the value of between 600 and 1200 marks. Walter Neitzel.

CAMBRIDGE.

1 Schroeder, Lehrbuch der deutschen Rechtsgeschichte, 255.

2 Land Registration Act, § 29; Commercial Code, § 12 et al.

E. g., Civ. Code, §§ 1434, 2371.

♦ Statute introducing the Civil Code, art. 141.

6 Court Organization Act, §§ 23, 27, 75.

DUE PROCESS OF LAW AND THE
EIGHT-HOUR DAY.

HE actual words of the Fourteenth Amendment are these:

THE actual words often deprive any person or

nor shall any state 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." In the Fifth Amendment the last clause is omitted. In the Constitution of Massachusetts, "Part the First, XII," are the words, "And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." In the Petition of Right, 3 Car. I, c. 1, 1628, IV, it was recited that in the 28th of Edward III it had been enacted that no man "should be put out of his land or tenements, nor taken, nor imprisoned, nor disherited, nor put to death without being brought to answer by due process of law." Finally Magna Carta in the twenty-ninth chapter has it: "No Freeman shall be taken or imprisoned, or be disseised of his freehold or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land." Lord Coke's gloss1 reads: "1. That no man be taken or imprisoned but per legem terrae, that is, by the Common Law, Statute Law, or Custom of England."

The history of how these declarations came to apply to statutes passed by representative assemblies is not of consequence now, for they have come so to apply beyond peradventure. It is also not of consequence that the "liberty" guaranteed by the Fourteenth Amendment has come to mean the right to pursue one's individual purposes as one likes and to make contracts for that end. There can be little doubt that so to construe the term "liberty" is entirely to disregard the whole juristic history of the word.2 At present the construction which includes within it the

2 Mr. Charles E. Shattuck in 4 HARV. L. REV. 365. Mr. E. Parmalee Prentice in his book on the Commerce Clause seeks to support historically the modern interpretation, but the instances he gives are either literary or philosophical, or they seem to