In reading James Wilson's work, one understands why many Roman Catholics may feel an affinity for the US Founding, despite the fact that the "Protestant" US Founders oft-expressed appalling anti-Roman Catholic bigotry: The US Founding heavily relied on natural law theory and Roman Catholics have embraced natural law through the teachings of Aquinas, who in turned adopted natural law from Aristotle.
Protestants have differed on whether natural law with its excessive use of reason and its antecedents in Aristotle is compatible at all with biblical Christianity. Francis Schaeffer, for instance, didn't think so. Tom Van Dyke, in this comment, nicely sums up why Christianity and natural law are compatible:
Paul in the Epistles sez that the natural law is written on man's heart. That's how Aquinas could give the pagan pre-Christian-era Aristotle his props.
It's not "reason" exactly. It's our human nature, our humanity itself, just as God created us. Some soft spot that lets us love art and not be robots. Aristotle found his way not only with an open mind but with an open heart. Aristotle was a mensch. If you know your Yiddish, a mensch has a brain and a heart. Otherwise, he's not a man.
Compare Aristotle with [the modernist] Thomas Hobbes, who made a damn good argument that we're just sophisticated and calculating social animals, and you see the difference.
America's Protestant natural lawyers rarely cited Aquinas but they did cite Locke, who in turn cited Hooker who in turn was the Anglican heir to Aquinas. AND the Founders loved Aristotle as well.
But one thing to understand about the natural law -- and this is something that Christian America apologists often don't get -- is that it defines as what man discovers from reason. And, though, ultimately "Christian" natural law believes in the synthesis and perfect agreement of reason and revelation, it eschews simply looking up verses and chapters of the Bible as proof texts and quoting them as trumping authority. So if one is a Protestant like Francis Schaeffer who likes to do that because man's unregenerate reason is the "devil's whore" as it were, the natural law of the American Founding (i.e., "the laws of nature and nature's God") is not likely to resonate with you.
And so it is that I am going to post a long excerpt from James Wilson's Works. Wilson was one of the most important Founding Fathers, one of six (I believe) who signed the Declaration and the US Constitution. And he played a key role at the Constitutional Convention. And, as a common lawyer and expositor of how Americans viewed "the laws of nature and nature's God," he is a much better authority than Blackstone who was an English Tory who believed in the very Parliamentary supremacy against which America revolted.
Wilson's theories, as we will see shortly, are certainly reminiscent of Aquinas'. After quoting this long excerpt, my next post will feature some reasons why evangelicals/fundamentalists don't embrace the natural law. In short, it's too "man" centered and philosophical. It DOESN'T view the Bible as central. I quoted all of Chapter 1 and about half of Chapter 2. I end at a point in Chapter 2 where Wilson refers to the natural law as that which is written on man's heart by God, the point of connection between the Bible and Aristotle to which Mr. Van Dyke alluded. Wilson rarely cites scripture in an authoritative "verse and chapter" sense. There are however, some biblical references very mildly peppered throughout; the bulk of said contents are derived from natural law reasoning-philosophical rationalism. The same thing can be said of John Witherspoon's Lectures on Moral Philosophy which are not at all Calvinistic but rather the product of Witherspoon's naturalism and rationalism. Indeed there Witherspoon relies on Samuel Clarke the British naturalist-rationalist Anglican divine who was nearly defrocked for peddling Arianism in the Church.
Anyway, here is a long excerpt from Works which hopefully helps to put Wilson's theology of law into better context:
OF THE STUDY OF THE LAW IN THE UNITED STATES.
LADIES AND GENTLEMEN,
THOUGH I am not unaccustomed to speak in publick, yet, on this occasion, I rise with much diffidence to address you. The character, in which I appear, is both important and new. Anxiety and selfdistrust are natural on my first appearance. These feelings are greatly heightened by another consideration, which operates with peculiar force. I never before had the honour of addressing a fair audience. Anxiety and selfdistrust, in an uncommon degree, are natural, when, for the first time, I address a fair audience so brilliant as this is. There is one encouraging reflection, however, which greatly supports me. The whole of my very respectable audience is as much distinguished by its politeness, as a part of it is distinguished by its brilliancy. From that politeness, I shall receive ― what I feel I need ― an uncommon degree of generous indulgence.
It is the remark of an admired historian, that the high character, which the Grecian commonwealths long possessed among nations, should not be ascribed solely to their excellence in science and in government. With regard to these, other nations, he thinks, and particularly that of which he was writing the history, were entitled to a reputation, not less exalted and illustrious. But the opinion, he says, of the superiour endowments and achievements of the Grecians has arisen, in a considerable degree, from their peculiar felicity in having their virtues transmitted to posterity by writers, who excelled those of every other country in abilities and elegance.
Alexander, when master of the world, envied the good fortune of Achilles, who had a Homer to celebrate his deeds.
The observation, which was applied to Rome by Sallust, and the force of which appears so strongly from the feelings of Alexander, permit me to apply, for I can apply it with equal propriety, to the States of America.
They have not, it is true, been long or much known upon the great theatre of nations: their immature age has not hitherto furnished them with many occasions of extending their renown to the distant quarters of the globe. But, in real worth and excellence, I boldly venture to compare them with the most illustrious commonwealths, which adorn the records of fame. When some future Xenophon or Thucydides shall arise to do justice to their virtues and their actions; the glory of America will rival ― it will outshine the glory of Greece.
Were I called upon for my reasons why I deem so highly of the American character, I would assign them in a very few words ― That character has been eminently distinguished by the love of liberty, and the love of law.
I rejoice in my appointment to this chair, because it gives me the best opportunities to discover, to study, to develop, and to communicate many striking instances, hitherto little known, on which this distinguished character is founded.
In free countries ― in free countries, especially, that boast the blessing of a common law, springing warm and spontaneous from the manners of the people ― Law should be studied and taught as a historical science.
The eloquent Rousseau complains, that the origin of nations is much concealed by the darkness or the distance of antiquity.
In many parts of the world, the fact may be as he represents it; and yet his complaint may be without foundation: for, in many parts of the world, the origin of nations ought to be buried in oblivion. To succeeding ages, the knowledge of it would convey neither pleasure nor instruction.
With regard to the States of America, I am happy in saying, that a complaint concerning the uncertainty of their first settlements cannot be made with propriety or truth; though I must add, that, if it could be made with propriety or truth, it would be a subject of the deepest regret.
If the just and genuine principles of society can diffuse a lustre round the establishment of nations; that of the States of America is indeed illustrious. Fierce oppression, rattling, in her left hand, the chains of tyranny; and brandishing, in her right hand, the torch of persecution, drove our predecessors from the coasts of Europe: liberty, benevolent and serene, pointing to a cornucopia on one side, and to a branch of olive on the other, invited and conducted them to the American shores.
In discharging the duties of this office, I shall have the pleasure of presenting to my hearers what, as to the nations in the Transatlantick world, must be searched for in vain ― an original compact of a society, on its first arrival in this section of the globe. How the lawyers, and statesmen, and antiquarians, and philosophers of Europe would exult, on discovering a similar monument of the Athenian commonwealth! and yet, perhaps, the historical monuments of the states of America are not, intrinsically, less important, or less worthy of attention, than the historical monuments of the states of Greece. The latter, indeed, are gilded with the gay decorations of fable and mythology; but the former are clothed in the neater and more simple garb of freedom and truth.
The doctrine of toleration in matters of religion, reasonable though it certainly is, has not been long known or acknowledged. For its reception and establishment, where it has been received and established, the world has been thought to owe much to the inestimable writings of the celebrated Locke. To the inestimable writings of that justly celebrated man, let the tribute of applause be plenteously paid: but while immortal honours are bestowed on the name and character of Locke; why should an ungracious silence be observed, with regard to the name and character of Calvert?
Let it be known, that, before the doctrine of toleration was published in Europe, the practice of it was established in America. A law in favour of religious freedom was passed in Maryland, as early as the year one thousand six hundred and forty nine.
When my Lord Baltimore was afterwards urged ― not by the spirit of freedom ― to consent that this law should be repealed; with the enlightened principles of a man and a christian, he had the fortitude to declare, that he never would assent to the repeal of a law, which protected the natural rights of men, by ensuring to every one freedom of action and thought. Indeed, the character of this excellent man has been too little known. He was truly the father of his country. To the legislature of Maryland he often recommended a maxim, which deserves to be written in letters of gold: "By concord a small colony may grow into a great and renowned nation; but, by dissensions, mighty and glorious kingdoms have declined and fallen1 into nothing."
1. Chal. 363.
Similar to that of Calvert, has been the fate of many other valuable characters in America. They have been too little known. To those around them, their modest merits have been too familiar, perhaps too uniform, to attract particular and distinguished attention: by those at a distance, the mild and peaceful voice of their virtue has not been heard. But to their memories, justice should be done, as far as it can be done, by a just and grateful country.
In the European temple of fame, William Penn is placed by the side of Lycurgus. Will America refuse a temple to her patriots and her heroes? No; she will not. The glorious dome already rises. Its architecture is of the neatest and chastest order: its dimensions are spacious: its proportions are elegant and correct. In its front a number of niches are formed. In some of them statues are placed. On the left hand of the portal, are the names and figures of Warren, Montgomery, Mercer. On the right hand, are the names and figures of Calvert, Penn, Franklin. In the middle, is a niche of larger size, and decorated with peculiar ornaments. On the left side of it, are sculptured the trophies of war on the right, the more precious emblems of peace. Above it, is represented the rising glory of the United States. It is without a statue and without a name. Beneath it, in letters very legible, are these words ― "FOR THE MOST WORTHY." By the enraptured voice of grateful America ― with the consenting plaudits of an admiring world, the designation is unanimously made. Late ― very late ― may the niche be filled.2
2. General Washington, then President of the United States, was present when this lecture was delivered. Ed.
But while we perform the pleasing duties of gratitude, let not other duties be disregarded. Illustrious
examples are displayed to our view, that we may imitate as well as admire. Before we can be distinguished by the same honours, we must be distinguished by the same virtues.
What are those virtues? They are chiefly the same virtues, which we have already seen to be descriptive of the American character ― the love of liberty, and the love of law. But law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge. The same course of study, properly directed, will lead us to the knowledge of both. Indeed, neither of them can be known, because neither of them can exist, without the other. Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness. In denominating, therefore, that science, by which the knowledge of both is acquired, it is unnecessary to preserve, in terms, the distinction between them. That science may be named, as it has been named, the science of law.
The science of law should, in some measure, and in some degree, be the study of every free citizen, and of every free man. Every free citizen and every free man has duties to perform and rights to claim. Unless, in some measure, and in some degree, he knows those duties and those rights, he can never act a just and an independent part.
Happily, the general and most important principles of law are not removed to a very great distance from common apprehension. It has been said of religion, that though the elephant may swim, yet the lamb may wade in it. Concerning law, the same observation may be made.
The home navigation, carried on along the shores, is more necessary, and more useful too, than that, which is pursued through the deep and expanded ocean. A man may be a most excellent coaster, though he possess not the nautical accomplishments and experience of a Cook.
As a science, the law is far from being so disagreeable or so perplexed a study, as it is frequently supposed to be. Some, indeed, involve themselves in a thick mist of terms of art; and use a language unknown to all, but those of the profession. By such, the knowledge of the law, like the mysteries of some ancient divinity, is confined to its initiated votaries; as if all others were in duty bound, blindly and implicitly to obey. But this ought not to be the case. The knowledge of those rational principles on which the law is founded, ought, especially in a free government, to be diffused over the whole community.
In a free country, every citizen forms a part of the sovereign power: he possesses a vote, or takes a still more active part in the business of the commonwealth. The right and the duty of giving that vote, the right and the duty of taking that share, are necessarily attended with the duty of making that business the object of his study and inquiry.
In the United States, every citizen is frequently called upon to act in this great publick character. He elects the legislative, and he takes a personal share in the executive and judicial departments of the nation. It is true, that a man, who wishes to be right, will, with the official assistance afforded him, be seldom under the necessity of being wrong: but it is equally true, and it ought not to be concealed, that the publick duties and the publick rights of every citizen of the United States loudly demand from him all the time, which he can prudently spare, and all the means which he can prudently employ, in order to learn that part, which it is incumbent on him to act.
On the publick mind, one great truth can never be too deeply impressed ― that the weight of the government of the United States, and of each state composing the onion, rests on the shoulders of the people. I express not this sentiment now, as I have never expressed it heretofore, with a view to flatter:
I express it now, as I have always expressed it heretofore, with a far other and higher aim ― with an aim to excite the people to acquire, by vigorous and manly exercise, a degree of strength sufficient to support the weighty burthen, which is laid upon them ― with an aim to convince them, that their duties rise in strict proportion to their rights; and that few are able to trace or to estimate the great danger, in a free government, when the rights of the people are unexercised, and the still greater danger, when the rights of the people are ill exercised.
At a general election, too few attend to the important consequences of voting or not voting; and to the consequences, still more important, of voting right or voting wrong.
The rights and the duties of jurors, in the United States, are great and extensive. No punishment can be inflicted without the intervention of one ― in much the greater number of cases, without the intervention of more than one jury. Is it not of immense consequence to the publick, that those, who have committed crimes, should not escape with impunity? Is it not of immense consequence to individuals, that all, except those who have committed crimes, should be secure from the punishment denounced against their commission? Is it not, then, of immense consequence to both, that jurors should possess the spirit of just discernment, to discriminate between the innocent and the guilty? This spirit of just discernment requires knowledge of, at least, the general principles of the law, as well as knowledge of the minute particulars concerning the facts.
It is true, that, in matters of law, the jurors are entitled to the assistance of the judges; but it is also true, that, after they receive it, they have the right of judging for themselves: and is there not to this right the great corresponding duty of judging properly?
Surely, therefore, those who discharge the important and, let me add, the dignified functions of jurors, should acquire, as far as they possibly can acquire, a knowledge of the laws of their country: for, let me add further, the dignity, though not the importance of their functions, will greatly depend on the abilities; with which they discharge them.
But in the administration of justice ― that part of government, which comes home most intimately to the business and the bosoms of men ― there are judges as well as jurors; those, whose peculiar province it is to answer questions of law, as well as those, whose peculiar province it is to answer questions of fact.
In many courts ― in many respectable courts within the United States, the judges are not, and, for a long time, cannot be gentlemen of professional acquirements. They may, however, fill their offices usefully and honourably, the want of professional acquirements notwithstanding. But can they do this, without a reasonable degree of acquaintance with the law?
We have already seen, that, in questions of law, the jurors are entitled to the assistance of the judges: but can the judges give assistance, without knowing what answers to make to the questions which the jury may propose? can those direct others, who themselves know not the road?
Unquestionably, then, those who fill, and those who expect to fill the offices of judges in courts, not, indeed, supreme, but rising in importance and in dignity above the appellation of inferiour, ought to make the strongest efforts in order to obtain a respectable degree of knowledge in the law.
Let me ascend to a station more elevated still. In the United States, the doors of publick honours and publick offices are, on the broad principles of equal liberty, thrown open to all. A laudable emulation, an emulation that ought to be encouraged in a free government, may prompt a man to legislate as well as to decide for his fellow citizens ― to legislate, not merely for a single State, but for the most august Union that has yet been formed on the face of the globe.
Should not he, who is to supply the deficiencies of the existing law, know when the existing law is defective? Should not he, who is to introduce alterations into the existing law, know in what instances the existing law ought to be altered?
The first and governing maxim in the interpretation of a statute is, to discover the meaning of those, who made it. The first rule, subservient to the principle of the governing maxim, is, to discover what the law was, before the statute was made. The inference, necessarily resulting from the joint operation of the maxim and the rule, is this, that in explaining a statute, the judges ought to take it for granted, that those, who made it, knew the antecedent law. This certainly implies, that a competent knowledge of, at least, the general principles of law, is of indispensable necessity to those, who undertake the transcendent office of legislation.
I say, a knowledge of the general principles of law for though an accurate, a minute, and an extensive knowledge of its practice and particular rules be highly useful; yet I cannot conceive it to be absolutely requisite to the able discharge of a legislative trust.
Upon this distinction ― and it is an important one ― I cannot, perhaps, explain myself better, than by delivering the sentiments, which were entertained, some centuries ago, by a very learned and able judge ― I mean the Lord Chancellor Fortescue.
In his excellent book, which he wrote in praise of the laws of England, he uses a number of arguments with his pupil, the prince of Wales, to excite him to the study of the law. Of these arguments the prince feels and acknowledges the full force. "But," says he, "there is one thing, which agitates my mind in such a manner, that, like a vessel tossed in the tumultuous ocean, I know not how to direct my course: it is, that when I recollect the number of years, which the students of the law employ, before they acquire a sufficient degree of knowledge, I am apprehensive lest, in studies of this nature, I should consume the whole of my youth."
To relieve his pupil from this anxiety, the chancellor cites a passage from the writings of Aristotle, to the following purpose: "We are then supposed to know a thing, when we apprehend its causes and its principles, as high as its original elements."
This maxim the chancellor illustrates, by a reference to several of the sciences; and then draws this general conclusion. "Whoever knows the principles and elements of any science, knows the science itself ― generally, at least, though not completely." This conclusion he then applies to the science of law. "In the same manner, when you shall become acquainted with the principles and the elements of law, you may be denominated a lawyer. It will not be necessary for you, at a great expense of your time, to scrutinize curious and intricate points of discussion. I know the quickness of your apprehension, and the strength of your genius. Though the legal knowledge accumulated in a series of twenty years is not more than sufficient to qualify one for being a judge; yet, in one year, you will be able to acquire a degree of it sufficient for you; without, even in that year, neglecting your other studies and improvements."3
That a law education is necessary for gentlemen intended for the profession of the law, it would be as ridiculous to prove as to deny. In all other countries, publick institutions bear a standing testimony to this truth. Ought this to be the only country without them? Justinian, who did so much for the Roman law, was, as might have been expected, uncommonly attentive to form and establish a proper plan for studying it. All the modern nations of Europe have admitted the profession of their municipal jurisprudence, into their universities and other seminaries of liberal education.
In England, numerous and ample provisions have been made for this purpose. For young gentlemen, there are eight houses of chancery, where they learn the first elements of law. For those more advanced in their studies, there are four inns of court. "All these together," says my Lord Coke,4 with conscious professional pride, "compose the most illustrious university in the world, for the profession of law." Here lectures have been read, exercises have been performed, and degrees in the common law have been conferred, in the same manner as degrees in the civil and canon law, in other universities.
Besides all these, the Vinerian professorship of law has, not many years ago, been established in the university of Oxford. Of this professorship, the celebrated Sir William Blackstone was the first, who filled the chair.
3. Fort. de Laud. c. 7, 8.
4. 3 Rep. Pref. 20.
A question deeply interesting to the American States now presents itself. Should the elements of a law education, particularly as it respects publick law, be drawn entirely from another country ― or should they be drawn, in part, at least, from the constitutions and governments and laws of the United States, and of the several States composing the Union?
The subject, to one standing where I stand, is not without its delicacy: let me, however, treat it with the decent but firm freedom, which befits an independent citizen, and a professor in independent states.
Surely I am justified in saying, that the principles of the constitutions and governments and laws of the United States, and the republicks, of which they are formed, are materially different from the principles of the constitution and government and laws of England; for that is the only country, from the principles of whose constitution and government and laws, it will be contended, that the elements of a law education ought to be drawn. I presume to go further: the principles of our constitutions and governments and laws are materially better than the principles of the constitution and government and laws of England.
Permit me to mention one great principle, the vital principle I may well call it, which diffuses animation and vigour through all the others. The principle I mean is this, that the supreme or sovereign power of the society resides in the citizens at large; and that, therefore, they always retain the right of abolishing, altering, or amending their constitution, at whatever time, and in whatever manner, they shall deem it expedient.
By Sir William Blackstone, from whose Commentaries, a performance in many respects highly valuable, the elements of a foreign law education would probably be borrowed ― by Sir William Blackstone, this great and fundamental principle is treated as a political chimera, existing only in the minds of some theorists; but, in practice, inconsistent with the dispensation of any government upon earth. Let us hear his own words.
'It must be owned that Mr. Locke and other theoretical writers have held, that "there remains still inherent in the people, a supreme power to alter the legislative, when they find the legislative act contrary to the trust reposed in them; for when such trust is abused, it is thereby forfeited, and devolves to those, who gave it." ' But, however just this conclusion may be in theory, we cannot admit it, nor argue from it, under any dispensation of government, at present actually existing. For this devolution of power to the people at large, includes a dissolution of the whole form of government established by that people; reduces all the members to their original state of equality; and, by annihilating the sovereign power, repeals all positive laws whatsoever before enacted. No human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual.5
5. 1 Bl. Com. 161, 162.
And yet, even in England, there have been revolutions of government: there has been one within very little more than a century ago. The learned Author of the Commentaries admits the fact; but denies it to be a ground on which any constitutional principle can be established.
If the same precise "conjunction of circumstances" should happen a second time; the revolution of one thousand six hundred and eighty eight would form a precedent: but were only one or two of the circumstances, forming that conjunction, to happen again; "the precedent would fail us."6
6. 1 Bl. Com. 245.
The three circumstances, which formed that conjunction, were these: 1. An endeavour to subvert the constitution, by breaking the original contract between the king and people. 2. Violation of the fundamental laws. 3. Withdrawing out of the kingdom.
Now, on this state of things, let us make a supposition ― not a very foreign one ― and see the consequences, which would unquestionably follow from the principles of Sir William Blackstone. Let us suppose, that, on some occasion, a prince should form a conjunction of only two of the circumstances; for instance, that he should only violate the fundamental laws, and endeavour to subvert the constitution: let us suppose, that, instead of completing the conjunction, by withdrawing out of his government, he should only employ some forty or fifty thousand troops to give full efficacy to the two first circumstances: let us suppose all this ― and it is surely not unnatural to suppose, that a prince, who shall form the two first parts of the conjunction, will not, like James the second, run away from the execution of them ― let
us, I say, suppose all this; and what, on the principles of Sir William Blackstone, would be the undeniable consequence? In the language of the Commentaries, "our precedent would fail us."
But we have thought, and we have acted upon revolution principles, without offering them up as sacrifices at the shrine of revolution precedents.
Why should we not teach our children those principles, upon which we ourselves have thought and acted? Ought we to instil into their tender minds a theory, especially if unfounded, which is contradictory to our own practice, built on the most solid foundation? Why should we reduce them to the cruel dilemma of condemning, either those principles which they have been taught to believe, or those persons whom they have been taught to revere?
It is true, that the learned Author of the Commentaries concludes this very passage, by telling us, that "there are inherent, though latent powers of society, which no climate, no time, no constitution, no contract can ever destroy or diminish." But what does this prove? not that revolution principles are, in his opinion, recognized by the English constitution; but that the English constitution, whether considered as a law, or as a contract, cannot destroy or diminish those principles.
It is the opinion of many, that the revolution of one thousand six hundred and eighty eight did more than set a mere precedent, even in England. But be that as it may: a revolution principle certainly is, and certainly should be taught as a principle of the constitution of the United States, and of every State in the Union.
This revolution principle ― that, the sovereign power residing in the people, they may change their constitution and government whenever they please ― is not a principle of discord, rancour, or war: it is a principle of melioration, contentment, and peace. It is a principle not recommended merely by a flattering theory it is a principle recommended by happy experience. To the testimony of Pennsylvania ― to the testimony of the United States I appeal for the truth of what I say.
In the course of these lectures, my duty will oblige me to notice some other important principles, very particularly his definition and explanation of law itself, in which my sentiments differ from those of the respectable Author of the Commentaries. It already appears, that, with regard to the very first principles of government, we set out from different points of departure.
As I have mentioned Sir William Blackstone, let me speak of him explicitly as it becomes me. I cannot consider him as a zealous friend of republicanism. One of his survivers or successours in office has characterized him by the appellation of an antirepublican lawyer. On the subject of government, I think I can plainly discover his jealousies and his attachments.
For his jealousies, an easy and natural account may be given. In England, only one specimen of a commonwealth has been exhibited to publick examination; and that specimen was, indeed, an unfavourable one. On trial, it was found to be unsound and unsatisfactory. It is not very surprising that an English lawyer, with an example so inauspicious before his eyes, should feel a degree of aversion, latent, yet strong, to a republican government.
An account, perhaps equally natural and easy, may he given for his attachments. With all reigning families, I believe, it is a settled maxim, that every revolution in government is unjustifiable, except the single one, which conducted them to the throne. The maxims of the court have always their diffusive influence. That influence, in favour of one species of government, might steal imperceptibly upon a mind, already jealous of another species, viewed as its rival, and as its enemy.
But, with all his prejudices concerning government, I have the pleasure of beholding him, in one conspicuous aspect, as a friend to the rights of men. To those rights, the author of the beautiful and animated dissertations concerning juries could not be cold or insensible.
As author of the Commentaries, he possessed uncommon merit. His manner is clear and methodical; his sentiments ― I speak of them generally ― are judicious and solid; his language is elegant and pure. In publick law, however, he should be consulted with a cautious prudence. But, even in publick law, his principles, when they are not proper objects of imitation, will furnish excellent materials of contrast. On every account, therefore, he should be read and studied. He deserves to be much admired; but he ought not to be implicitly followed.
This last admonitory remark should not be confined to Sir William Blackstone: it ought to be extended to all political writers ― must I say? ― almost without exception. This seems a severe sentence: but, if it is just, it must be pronounced. The cause of liberty, the rights of men require, that, in a subject essential to that cause and to those rights, errour should be exposed, in order to be avoided.
The foundations of political truth have been laid but lately: the genuine science of government, to no human science inferiour in importance, is, indeed, but in its infancy: and the reason of this can be easily assigned. In the whole annals of the Transatlantick world, it will be difficult to point out a single instance of its legitimate institution: I will go further, and say, that, among all the political writers of the Transatlantick world, it will be difficult to point out a single model of its unbiassed theory.
The celebrated Grotius introduces what he says concerning the interesting doctrine of sovereignty, with the following information. "Learned men of our age, each of them handling the argument, rather according to the present interest of the affairs of his country, than according to truth, have greatly perplexed that, which, of itself, was not very clear."7 In this, the learned men of every other age have resembled those of the age of Grotius.
7. Gro. b. i. c. 3. e. 5.
Indeed, it is astonishing, in what intricate mazes politicians and philosophers have bewildered themselves upon this subject. Systems have been formed upon systems, all fleeting, because all unfounded. Sovereignty has sometimes been viewed as a star, which eluded our investigation by its immeasurable height: sometimes it has been considered as a sun, which could not be distinctly seen by reason of its insufferable splendour.
In Egypt, the Nile is an object truly striking and grand. Its waters, rising to a certain height, and spreading to a certain distance, are the cause of fertility and plenty: swelling higher, and extending further, they produce devastation and famine. This stupendous stream, at some times so beneficial, at other times so destructive, has, at all times, formed a subject of anxious inquiry. To trace its source has been the unceasing aim of the mighty and the learned. Kings, attended with all the instruments of strength; sages, furnished with all the apparatus of philosophy, have engaged, with ardour, in the curious search; but their most patient and their most powerful enterprises have been equally vain.
The source of the Nile continued still unknown; and because it continued still unknown, the poets fondly fabled that it was to be found only in a superiour orb; and, of course, it was worshipped as a divinity.
We are told, however, that, at last, the source of the Nile has been discovered; and that it consists of ― what might have been supposed before the discovery ― a collection of springs small, indeed, but pure.
The fate of sovereignty has been similar to that of the Nile. Always magnificent, always interesting to mankind, it has become alternately their blessing and their curse. Its origin has often been attempted to be traced. The great and the wise have embarked in the undertaking; though seldom, it must be owned, with the spirit of just inquiry; or in the direction, which leads to important discovery. The source of sovereignty was still concealed beyond some impenetrable mystery; and, because it was concealed, philosophers and politicians, in this instance, gravely taught what, in the other, the poets had fondly fabled, that it must be something more than human: it was impiously asserted to be divine.
Lately, the inquiry has been recommenced with a different spirit, and in a new direction; and although the discovery of nothing very astonishing, yet the discovery of something very useful and true, has been the result. The dread and redoubtable sovereign, when traced to his ultimate and genuine source, has been found, as he ought to have been found, in the free and independent man.
This truth, so simple and natural, and yet so neglected or despised, may be appreciated as the first and fundamental principle in the science of government.
Besides the reasons, which I have already offered; others may be suggested, why the elements of a law education ought to be drawn from our own constitutions and governments and laws.
In every government, which is not altogether despotical, the institution of youth is of some publick consequence. In a republican government, it is of the greatest. Of no class of citizens can the education be of more publick consequence, than that of those, who are destined to take an active part in publick affairs. Those who have had the advantage of a law education, are very frequently destined to take this active part. This deduction clearly shows, that, in a free government, the principles of a law education are matters of the greatest publick consequence.
Ought not those principles to be congenial with the principles of government? By the revolution in the United States, a very great alteration ― a very great improvement ― as we have already seen, has taken place in our system of government: ought not a proportioned alteration ― ought not a proportioned improvement to be introduced into our system of law education?
We have passed the Red Sea in safety: we have survived a tedious and dangerous journey through the wilderness: we are now in full and peaceable possession of the promised land: must we, after all, return to the flesh pots of Egypt? Is there not danger, that when one nation teaches, it may, in some instances, give the law to another?
A foundation of human happiness, broader and deeper than any that has heretofore been laid, is now laid in the United States: on that broad and deep foundation, let it be our pride, as it is our duty, to build a superstructure of adequate extent and magnificence.
But further; many parts of the laws of England can, in their own nature, have neither force nor application here. Such are all those parts, which are connected with ecclesiastical jurisdiction and an ecclesiastical establishment. Such are all those parts, too, which relate to the monarchical and aristocratick branches of the English constitution. Every one, who has perused the ponderous volumes of the law, knows how great a proportion of them is filled with the numerous and extensive titles relating to those different subjects. Surely they need not enter into the elements of a law education in the United States.
I mean not, however, to exclude them from the subsequent investigation of those, who shall aspire at the character of accomplished lawyers. I only mean, that they ought not to be put into the hands of students, as deserving the same time and the same attention with other parts, which are to have a practical influence upon their future conduct in their profession.
The numerous regulations, in England, respecting the poor, and the more artificial refinements and distinctions concerning real estates, must be known; but known as much in order to be avoided as to be practised. The study of them, therefore, need not be so minute here as in England.
Concerning many other titles of the English law, similar observations might be made. The force and the extent of each will increase day after day, and year after year.
All combine in showing, that the foundation, at least, of a separate, an unbiassed, and an independent law education should be laid in the United States.
Deeply impressed with the importance of this truth, I have undertaken the difficult, the laborious, and the delicate task of contributing to lay that foundation. I feel most sensibly the weight of the duty, which I have engaged to perform. I will not promise to perform it successfully ― as well as it might be performed: but I will promise to perform it faithfully ― as well as I can perform it. I feel its full importance.
It may be asked ― I am told it has been asked ― is it proper that a judge of the supreme court of the United States should deliver lectures on law? It will not surely be suspected, that I deem too lightly of the very dignified and independent office, which I have the honor to hold, in consequence of the favourable sentiments entertained concerning me by those, whose favourable sentiments are indeed an honour. Had I thought that the dignity of that seat could be disparaged by an alliance with this chair, I would have spurned it from me. But I thought, and I still think in a very different manner. By my acceptance of this chair, I think I shall certainly increase my usefulness, without diminishing my dignity, as a judge; and I think, that, with equal certainty, I shall, as a judge, increase my usefulness, I will not say my dignity, in this chair. He, who is well qualified to teach, is well qualified to judge; and he, who is well qualified to judge, is well qualified to teach. Every acquisition of knowledge ― and it is my duty to acquire much ― can, with equal facility, and with equal propriety, be applied to either office: for let it be remembered, that both offices view the same science as their common object.
Any interference as to the times of discharging the two offices ― the only one that strikes me as possible ― will be carefully avoided.
But it may be further asked ― ought a judge to commit himself by delivering his sentiments in a lecture? To this question I shall give a very explicit answer: and in that answer I shall include the determination, which I have taken both as a professor and as a judge. When I deliver my sentiments from this chair, they shall be my honest sentiments: when I deliver them from the bench, they shall be nothing more. In both places I shall make ― because I mean to support ― the claim to integrity: in neither shall I make ― because, in neither, can I support ― the claim to infallibility.
My house of knowledge is, at present, too small. I feel it my duty, on many accounts, to enlarge it. But in this, as in every other kind of architecture, I believe it will be found, that he, who adds much, must alter some.
When the greatest judges, who ever adorned or illuminated a court of justice, have candidly and cheerfully acknowledged their mistakes; shall I be afraid of committing myself?
The learned and indefatigable Spelman, after all the immense researches, which enabled him to prepare and publish his Glossary, published it with this remarkable precaution: "under the protestation of adding, retracting, correcting, and polishing, as, upon more mature consideration, shall seem expedient."8
I hope I have now shown, that my acceptance of this chair, instead of diminishing, is calculated to increase my usefulness, as a judge. Does it derogate from my dignity? By no means, in my opinion.
8. Sub protestatione de addendo, retrahendo, corrigendo, poliendo, prout opus fuerit et consultius videbitur. Sir H. Spelman.
Let things be considered as they really are. As a judge, I can decide whether property in disputee belongs to the man on my right hand, or to the man on my left hand. As a judge, I can pass sentence on a felon or a cheat. By doing both, a judge maybe eminently useful in preserving peace, and in securing property.
Property, highly deserving security, is, however, not an end, but a means. How miserable, and how contemptible is that man, who inverts the order of nature, and makes his property, not a means, but an end!
Society ought to be preserved in peace; most unquestionably. But is this all? Ought it not to be improved as well as protected? Look at individuals: observe them from infancy to youth, from youth to manhood. Such is the order of Providence with regard to society. It is in a progressive state, moving on towards perfection. How is this progressive state to be assisted and accelerated? Principally by teaching the young "ideas how to shoot," and the young affections how to move.
What intrinsically can be more dignified, than to assist in preparing tender and ingenuous minds for all the great purposes, for which they are intended! What, I repeat it, can intrinsically be more dignified, than to assist in forming a future Cicero, or a future Bacon, without the vanity of one, and without the meanness of the other!
Let us see how things have been considered in other ages and in other countries.
Philip of Macedon, a prince highly distinguished by his talents, though not by his virtues, was fully sensible of the value of science. An heir was born to his kingdom and his throne. Could any thing be more interesting to a father and a king? There was, it seems, a circumstance, which, in his opinion, enhanced the importance even of this event. His heir was born at a time, when he could receive a most excellent education.
Philip wrote to Aristotle the following letter: "You are to know that a son hath been born to us. We thank the gods, not so much for having bestowed him on us, as for bestowing him, at a time when Aristotle lives. We assure ourselves, that you will form him a prince worthy to be our successour, and a king worthy of Macedon."9
On Aristotle, accordingly, was devolved the charge of superintending the education of the young prince, "that he may be taught," said Philip, " to avoid those errours, which I have committed, and of which I now repent."
What price Alexander the Great set upon his education, before his mind was fatally poisoned by the madness of ambition, will appear by a letter from him to Aristotle, in which we find this sentiment: "I am not so anxious to appear superiour to the rest of mankind in power, as in the knowledge of excellent things."10 We see here the impetus of strong ambition; but it had not then taken its pernicious direction.
9. 1 Lel. L. Phil. 98.
10. 2 Lel, L. Phil. 126.
In the most shining periods of the Roman republick, men of the first distinction made the science of law their publick profession, and taught it openly in their houses as in so many schools. The first of these publick professors was Tiberius Coruncanius, who was raised to the office of chief pontiff the highest in the whole scale of Roman honours. His example was followed by many distinguished characters, among whom we find the celebrated names of the two Scevolæ, of Cato, of Brutus, and of others well known to such as are conversant with the writers of the classical ages. Even Cicero himself, after he had been consul of Rome, after he had had kings for his clients, projected this very employment, as his future "honour and ornament."11
Whether, therefore, we consider the intrinsick or the external dignity of this chair; we shall find that it is, by no means, beneath an alliance with the highest offices and the highest characters.
If any example, set by me, can be supposed to have the least publick influence; I hope it will be in raising the care of education to that high degree of respectability, to which, every where, but especially in countries that are free, it has the most unimpeachable title.
I have been zealous ― I hope I have not been altogether unsuccessful ― in contributing the best of my endeavours towards forming a system of government; I shall rise in importance, if I can be equally successful ― I will not be less zealous ― in contributing the best of my endeavours towards forming a system of education likewise, in the United States. I shall rise in importance, because I shall rise in usefulness.
11. Decus et ornamentum. De orat. l. 1. c. 45.
What are laws without manners? How can manners be formed, but by a proper education?12
Methinks I hear one of the female part of my audience exclaim ― What is all this to us? We have heard much of societies, of states, of governments, of laws, and of a law education. Is every thing made for your sex? Why should not we have a share? Is our sex less honest, or less virtuous, or less wise than yours?
Will any of my brethren be kind enough to furnish me with answers to these questions? ― I must answer them, it seems, myself? and I mean to answer them most sincerely.
Your sex is neither less honest, nor less virtuous, nor less wise than ours. With regard to the two first of these qualities, a superiority, on our part, will not be pretended: with regard to the last, a pretension of superiority cannot be supported.
I will name three women; and I will then challenge any of my brethren to name three men superiour to them in vigour and extent of abilities. My female champions are, Semiramis of Nineveh; Zenobia, the queen of the East; and Elizabeth of England. I believe it will readily be owned, that three men of superiour active talents cannot be named.
12. The ancient wisdom of the best times did always make a just complaint, that states were too busy with their laws; and too negligent in point of education. 2. Ld. Bacon 423.
You will please, however, to take notice, that the issue, upon which I put the characters of these three ladies, is not that they were accomplished; it is, that they were able women.
This distinction immediately reminds you, that a woman may be an able, without being an accomplished female character.
In this latter view, I did not produce the three female characters I have mentioned. I produced them as women, merely of distinguished abilities ― of abilities equal to those displayed by the most able of our sex.
But would you wish to be tried by the qualities of our sex? I will refer you to a more proper standard ― that of your own.
All the three able characters, I have mentioned, had, I think, too much of the masculine in them. Perhaps I can conjecture the reason. Might it not be owing, in a great measure ― might it not be owing altogether to the masculine employments, to which they devoted themselves?
Two of them were able warriours: all of them were able queens; but in all of them, we feel and we regret the loss of the lovely and accomplished woman: and let me assure you, that, in the estimation of our sex, the loss of the lovely and accomplished woman is irreparable, even when she is lost in the queen.
For these reasons, I doubt much, whether it would be proper that you should undertake the management of publick affairs. You have, indeed, heard much of publick government and publick law: but these things were not made for themselves: they were made for something better; and of that something better, you form the better part ― I mean society ― I mean particularly domestick society: there the lovely and accomplished woman shines with superiour lustre.
By some politicians, society has been considered as only the scaffolding of government; very improperly, in my judgment. In the just order of things, government is the scaffolding of society: and if society could be built and kept entire without government, the scaffolding might be thrown down, without the least inconvenience or cause of regret.
Government is, indeed, highly necessary; but it is highly necessary to a fallen state. Had man continued innocent, society, without the aids of government, would have shed its benign influence even over the bowers of Paradise.
For those bowers, how finely was your sex adapted! But let it be observed, that every thing else was finished, before Heaven's "last best gift" was introduced: let it be also observed, that, in the pure and perfect commencement of society, there was a striking difference between the only two persons, who composed it. His "large fair front and eye sublime" declared that, "for contemplation and for valour he was formed."
"For softness, she, and sweet attractive grace.
Grace was in all her steps, Heav'n in her eye;
In every gesture, dignity and love.
A thousand decencies unceasing flow'd
From all her words and actions, mixt with ―
― mild compliance."
Her accomplishments indicated her destination. Female beauty is the expression of female virtue. The purest complexion, the finest features, the most elegant shape are uninteresting and insipid, unless we can discover, by them, the emotions of the mind. How beautiful and engaging, on the other hand, are the features, the looks, and the gestures, while they disclose modesty, sensibility, and every sweet and tender affection When these appear, there is a "Soul upon the countenance."
These observations enhance the value of beauty; and show, that to possess and to admire it, is to possess and to admire the exhibition of the finest qualities, intellectual and moral. These observations do more they show how beauty may be acquired, and improved, and preserved. When the beauties of the mind are cultivated, the countenance becomes beautifully eloquent in expressing them.
I know very well, that mere complexion and shape enter into the composition of beauty: but they form beauty only of a lower order. Separate them from animation ― separate them from sensibility ― separate them from virtue: what are they? The ingredients that compose a beautiful picture or a beautiful statue. I say too much; for the painters and the statuaries know, that expression is the soul of mimick as well as of real life.
As complexion and shape will not supply the place of the higher orders of beauty; so those higher orders have an independent existence, after the inferiour influence of complexion and shape are gone. Though the bloom of youth be faded; though the impressions of time be distinctly marked; yet, while the countenance continues to be enlivened by the beaming emanations of the mind, it will produce, in every beholder possessed of sensibility and taste, an effect far more pleasing, and far more lasting, than can be produced by the prettiest piece of uninformed nature, however florid, however regular, and however young.
How many purposes may be served at once, if things are done in the proper way! I have been giving a recipe for the improvement and preservation of female beauty; but I find that I have, at the same time, been delivering instructions for the culture and refinement of female virtue; and have been pointing at the important purposes, which female virtue is fitted and intended to accomplish.
If nature evinces her designs by her works; you were destined to embellish, to refine, and to exalt the pleasures and virtues of social life.
To protect and to improve social life, is, as we have seen, the end of government and law. If, therefore, you have no share in the formation, you have a most intimate connexion with the effects, of a good system of law and government.
That plan of education, which will produce, or promote, or preserve such a system, is, consequently, an object to you peculiarly important.
But if you would see such a plan carried into complete effect, you must, my amiable hearers, give it your powerful assistance. The pleasing task of forming your daughters is almost solely yours. In my plan of education for your sons, I must solicit you to cooperate. Their virtues, in a certain proportion ― the refinement of their virtues, in a much greater proportion, must be moulded on your example.
In your sex, too, there is a natural, an easy, and, often, a pure flow of diction, which lays the best foundation for that eloquence, which, in a free country, is so important to ours.
The style of some of the finest orators of antiquity was originally formed on that of their mothers, or of other ladies, to whose acquaintance they had the honour of being introduced.
I have already mentioned the two Scevolæ among the illustrious Roman characters. One of them was married to Lælia, a lady, whose virtues and accomplishments rendered her one of the principal ornaments of Rome. She possessed the elegance of language in so eminent a degree, that the first speakers of the age were ambitious of her company. The graces of her unstudied elocution were the purest model, by which they could refine their own.
Cicero was in the number of those, who improved by the privilege of her conversation. In his writings, he speaks in terms of the warmest praise concerning her singular talents. He mentions also the conversation of her daughters and grand daughters, as deserving particular notice.
The province of early education by the female sex, was deemed, in Rome, an employment of so much dignity, that ladies of the first rank did not disdain it. We find the names of Aurelia and Attia, the mothers of Julius Cæsar and of Augustus, enumerated in the list of these honourable patronesses of education.
The example of the highly accomplished Cornelia, the daughter of the great Africanus, and the mother of the Gracchi, deserves uncommon attention. She shone, with singular lustre, in all those endowments and virtues that can dignify the female character.
She was, one day, visited by a lady of Campania, who was extremely fond of dress and ornament. This lady, after having displayed some very rich jewels of her own, expressed a wish to be favoured with the view of those which Cornelia had; expecting to see some very superb ones, in the toilet of a lady of such distinguished birth and character. Cornelia diverted the conversation, till her sons came into the room: "These are my jewels," said she, presenting them to the Campanian lady.
Cicero had seen her letters: his expressions concerning them are very remarkable. "I have read," says he, "the letters of Cornelia, the mother of the Gracchi; and it appears, that her sons were not so much nourished by the milk, as formed by the style of their mother."13
13. Legimus epistolas Corneliæ, matris Gracchorum: apparet filios non tam in gremie educatos, quam in sermone matris. Cic. de clar, orat, c. 58.
You see now, my fair and amiable hearers, how deeply and nearly interested you are in a proper plan of law education. By some of you, whom I know to be well qualified for taking in it the share, which I have described, that share will be taken. By the younger part of you, the good effects of such a plan will, I hope, be participated: for those of my pupils, who themselves shall become most estimable, will treat you with the highest degree of estimation.
PERMIT me, at this time, to address, in a very few words, the younger and more inexperienced part of those who attend my lectures ― I say the younger and more inexperienced part; because my lectures are honoured with the presence of some, whose learning, talents, and experience fit them for communicating instead of receiving instruction here. For the honour of their presence, I must consider myself indebted to the importance of my subject; and to a desire, generous and enlightened, of countenancing and encouraging every attempt, however feeble, to diffuse knowledge on a subject so important.
You have seen, my young friends, in what a high point of view I consider your education. Is this on your own account? Partly it is ― that you may be great and good men. But solely it is not; for more extended hopes are entertained concerning you: you are designated by your education, and by your country, to be great and good citizens.
In no other part of the world, and in no former period, even in this part of it, have youth ever beheld so glorious and so sublime a prospect before them. Your country is already respectable for its numbers; it is free; it is enlightened; it is flourishing; it is happy: in numbers; in liberty; in knowledge; in prosperity; in happiness it is receiving great and rapid accessions. Its honours are already beginning to bud: in a few years, they will "blossom thick" upon you. You ought certainly, by proper culture, to qualify yourselves in such a manner, that when the blossoms fade and fall, the fruit may begin to appear. Remember that, in a free government, every honour implies a trust; that every trust implies a duty; and that every duty ought to be performed.
I mean not, that such of you as are designed for the practice of the law, should be inattentive to the emoluments of your profession; but I mean that you should consider it as something higher than a mere instrument of private gain. By being fitted for higher purposes, it will not be less fit, it will be more fit for accomplishing this.
It is peculiarly necessary, that you should, as soon as possible, form proper conceptions of what ought to be your objects in your course of study. Let them not be fixed too low: the higher your aims, the higher your attainments will be. To assist you in fixing those aims, let me lay before you the sentiments of a writer, who wrote on some subjects most excellently, and on others most contemptibly ― I mean Lord Bolingbroke. When he wrote on politicks or business, he wrote well; because he wrote on what he knew: when he wrote concerning religion, he wrote ill; because he wrote concerning that, of which he was ignorant. The passage I am about to quote to you is vouched by the respectable authority of Lord Kaims, who considered it, and justly, as a master piece of expression and thought.
"I might instance," says he, "in other professions, the obligations men lie under of applying themselves to certain parts of history; and I can hardly forbear doing it in that of the law, in its nature, the noblest and most beneficial to mankind, in its abuse and debasement, the most sordid and the most pernicious. A lawyer now is nothing more, I speak of ninety nine in a hundred at least" (the proportion in this country, I believe, is much smaller) "to use some of Tully's words, "nisi liguleius quidam cautus, et acutus præco actionum, cantor formularum, auceps syllabarum:" but there have been lawyers that were orators, philosophers, historians: there have been Bacons and Clarendons. There will be none such any more, till, in some better age" (I hope that better age has found you, my young friends) "true ambition or the love of fame prevail over avarice; and till men find leisure and encouragement for the exercise of this profession, by climbing up to the vantage ground, so my Lord Bacon calls it, of science,14 instead of groveling all their lives below, in a mean but gainful application to all the little arts of chicane. Till this happen, the profession of law will scarce deserve to be ranked among the learned professions: and whenever it happens, one of the vantage grounds, to which men must climb, is metaphysical, and the other, historical knowledge." By metaphysical knowledge, his lordship evidently means the philosophy of the human mind; for he goes on in this manner. "They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws: and they must trace the laws of particular states, especially of their own, from the first rough sketches to the more perfect draughts; from the first causes or occasions that produced them, through all the effects, good and bad, that they produced."15
14. It is not possible to discover the more remote, and deeper parts of any science, if you stand but upon the level of the same science, and ascend not to a higher science. 2. Ld. Bac. 432.
15. Boling. of the Study of History. let. 5. p.149.
Such, my young friends, are the great prospects before you; and such is the general outline of those studies, by which you will be prepared to realize them. Suffer me to recommend most earnestly this outline to the utmost degree of your attention. It comes to you supported with all the countenance and authority of Bacon, Bolingbroke, Kaims ― two of them consummate in the practice, as well as in the knowledge of the law ― all of them eminent judges of men, of business, and of literature; and all distinguished by the accomplishments of an active, as well as those of a contemplative life. The propriety, the force, and the application of their sentiments will be gradually unfolded, fully explained, and warmly urged to you in the course of my lectures.
It is by no means an easy matter to form, to digest, and to arrange a plan of lectures, on a subject so various and so extensive as that of law. With great deference to some of you, with anxious zeal for the information of others, I lay before you the following analysis: reserving, however, to myself, the full right and force of the protestation, which I have already borrowed
from Sir Henry Spelman, of adding, retracting, correcting, and polishing, as, on more mature consideration, shall appear to me to be expedient.16
16. Some alterations, as the reader will observe, were afterwards made in the plan; but they are neither numerous nor important and need not be here particularized. Ed.
I begin with the general principles of law and obligation. These I shall investigate fully and minutely; because they are the basis of every legal system; and because they have been much misrepresented, or much misunderstood.
Next, I shall proceed to give you a concise and very general view of the law of nature, of the law of nations, and of municipal law.
I shall then consider man, who is the subject of all, and is the author as well as the subject of the last, and part of the second of these species of law. This great title of my plan, dignified and interesting as it is, must be treated in a very cursory manner in this course. I will, however, select some of the great truths which seem best adapted to a system of law. I will view man as an individual, as a member of society, as a member of a confederation, and as a part of the great commonwealth of nations.
His situation, under the third relation, is, in a great measure, new; and, to an American, peculiarly important: It will, therefore, merit and obtain peculiar attention.
The proper discussion of this title will draw on a discussion of the law of nations, under an aspect, almost
wholly new. How far, on the principles of the confederation, does the law of nations become the municipal law of the United States? The greatness of this question is selfevident: it would be very unwise, at present, even to hint at an answer.
After having examined these important preparatory topicks, I shall trace the causes, the origin, the progress, the history, the kinds, the parts, and the properties of government.
Under this title, I shall have occasion to treat concerning legislative, executive, and judicial power; and to investigate and compare the simple and the mixt species of governments and constitutions ― one, particularly, that is simple in its principle, though diversified in its form and operations.
This will lead me to a particular examination of the constitution and government of the United States, of Pennsylvania, and of her sister commonwealths.
By this time, we shall be qualified to enter, with proper advantage, upon the illustration of the different parts of our municipal law. The common law is the first great object, which will here present itself. I shall think it my duty to investigate very carefully its principles, its nature, and its history; particularly the great event of its transmigration from Europe to America; and the subsequent juridical history of the American States.
Our municipal law, I shall consider under two great divisions. Under the first, I shall treat of the law, as it relates to persons: under the second, I shall treat of it, as it relates to things.
The division of the United States into circuits, districts, states, counties, and townships will, probably, be introduced here, with some remarks concerning the causes, the operation, and the consequences of those divisions.
In considering the law as it relates to persons, the legislative department of the United States will occupy the first place; the executive department, the second; and the judicial department, the third.
Under the first, the institution and powers of congress will come into view. The principles on which the senate and house of representatives are separately established, will be carefully discriminated; and the necessary remarks will be made on the great doctrine of representation. The importance and the manner of legislation will also claim a portion of our regard.
In considering the executive authority of the United States, the appointment, the powers, and the duties of the president, will first attract our notice. We will then proceed to consider the number and the nature of the subordinate executive departments. We shall here have an opportunity of taking a very general view of the civil, commercial, fiscal, maritime, and military establishments of the United States.
When we come to the judicial department, our attention will be first drawn to the supreme court of the United States. Its establishment and its jurisdiction will be particularly considered; as also the establishment and jurisdiction of the circuit and district courts.
Here the nature, the history, and the jurisdiction of courts in general; and the powers and duties of judges, juries, sheriffs, coroners, counsellors, and attornies will be naturally introduced.
Perhaps this may be the proper place, likewise, for some general observations on the nature and philosophy of evidence; a proper system of which is the greatest desideratum in the law.
The investigation of the different parts of the constitution and government of the United States, will lay the foundation of a very interesting parallel between them and the pride of Europe ― the British constitution.
If the consideration of the legislative, executive, and judicial departments of the sister states can, without intricacy or confusion, be severally arranged under the three corresponding articles in the constitution of the United States; the parts of my plan will be considerably reduced in their number. I hope, but I am not confident, that this can be done. Upon this, as upon every other part of my plan, I shall be thankful for advice.
Bodies politick and inferiour societies will be described and distinguished.
The relations of private and of domestick life will pass in review before us; and after these, the rights and duties of citizens will come under consideration.
Here the important principles of election will receive the merited attention.
The rights, privileges, and disabilities of aliens will then be examined.
Happy would it be, if the great division of the law, which relates to persons, could be closed here. But it cannot be done. We are under the sad necessity of viewing law as sometimes violated, and man as sometimes guilty. Hence the ungracious doctrine of punishment and crimes.
I will introduce this disagreeable part of my system with general observations concerning the nature of crimes, and the necessity and the proportion of punishments next, I will descend into a particular enumeration and description of each. and I will afterwards point out the different steps prescribed by the law for apprehending, detaining, trying, and punishing offenders.
Here warrants, arrests, attachments, bail, commitments, imprisonment, appeals, informations, indictments, presentments, process, arraignments, pleas, trials, verdicts, judgments, attainders, pardons, forfeitures, corruption of blood, and executions will be considered.
With regard to criminal law, this observation may be made even in a summary: it greatly needs reformation. In the United States, the seeds of reformation are sown.
As to the second great division of our municipal law, which relates to things; it may be all comprehended under one word ― property. Claims, it is true, may arise from a variety of sources, almost infinite: but the declaration of every claim concludes by alleging a damage or a demand; and the decision of every successful claim concludes by awarding a satisfaction or a restitution in property.
I shall trace the history of property from its lowest rude beginnings to its highest artificial refinements; and, by that means, shall have an opportunity of pointing out the defects of the first, and the excesses of the last.
Property is of two kinds; publick and private. Under publick property, common highways, common bridges, common rivers, common ports are included. In the United States, and in the states composing the Union, there is much land belonging to the publick.
Private property is divided into two kinds; personal and real: things moveable are comprehended under the first division: things immoveable, under the second.
Estates in real property are measured by their duration. An estate of the greatest duration, is that which is in fee, or "to a man and his heirs," in the language of the common law. Real property of shorter duration is known by the names of estates tail, estates in tail after possibility of issue extinct, estates by the curtesy of England, estates in dower, estates for life, estates for years, estates by sufferance, and estates at will.
Estates may be either absolute or conditional. Under the title of conditional estates, the excellent law of Pennsylvania with regard to mortgages will deserve particular consideration.
Estates may be in possession or in expectancy. Under the last head, reversions, remainders, vested and contingent, and executory devises will be treated.
Property may be joint or cotemporary, as well as separate and successive. Here we will treat concerning coparceners, partners, joint tenants, and tenants in common.
Property may be acquired by occupancy, conveyance, descent, succession, will, custom, forfeiture, judgment in a court of justice. In much the greatest number of instances, the acquisition of property by one is accompanied with the transfer of it by another.
Conveyances are by matter of record; as a fine, a common recovery, a deed enrolled: or by matter in pais; as livery, deed: here the nature and different kinds of deeds, at common law, and by virtue of statutes, will be particularly considered.
Property may consist of things in possession, or of things in action.
Land, money, cattle, are instances of the first kind; debts, rights of damages, and rights of action are in. stances of the second kind.
These are prosecuted by suit.
You have heard much concerning the forms of process, and proceedings, and pleadings. Much has been written in praise, and much has been written in ridicule, of this part of law learning. It has certainly been abused: in some hands, it has become, and daily does become ridiculous. And what is there that has been exempted from a similar fate! religion herself, elegant and simple as she is, yet, when dressed in the tawdry or tattered robes put upon her by the false taste of her injudicious friends, assumes an awkward and ridiculous appearance.
Law has experienced the same treatment with her elder sister. But though the learning with regard to pleas and pleading has been abused, it may certainly be employed for the most excellent purposes.
When properly directed and properly used, the science of well pleading is, indeed, in the language of Littleton, "one of the most honourable, laudable, and profitable things in our law."17 Let me also adduce, in its favour, the weighty testimony of Earl Mansfield.18 "The substantial rules of pleading," says this very able judge, "are founded in strong sense, and in the soundest and closest logick; and so appear when well understood and explained: though, by being misunderstood and misapplied, they are too often made use of as the instruments of chicane."
Permit me to add, that some of the forms of writs and pleas, particularly those that are most ancient, are models of correct composition, as well as of just sentiment.
17. Litt. s. 534.
18. 1. Burr. 319.
The history of a suit at law, from its commencement, through all the different steps of its progress, to its conclusion, presents an object very interesting to a mind sensible to the beauty of strict and accurate arrangement. The dispositions of the drama are not made with more exactness and art. Every thing is done by the proper persons, at the proper time, in the proper place, in the proper order, and in the proper form.
This history may be comprised under the following titles ― original writ, process, return, appearance ― in person, by guardian, by next friend, by attorney ― bail, declaration, profert, over, imparlance, continuance, pleas ― in abatement and bar ― replication, rejoinder, issue, demurrer, trial, demurrer to evidence, bill of exceptions, verdict, new trial, judgment, appeal, writ of error, execution.
OF THE GENERAL PRINCIPLES OF LAW AND OBLIGATION.
ORDER, proportion, and fitness pervade the universe. Around us, we see; within us, we feel; above us, we admire a rule, from which a deviation cannot, or should not, or will not be made.
On the inanimate part of the creation, are impressed the continued energies of motion and of attraction, and other energies, varied and yet uniform, all designated and ascertained. Animated nature is under a government suited to every genus, to every species, and to every individual, of which it consists. Man, the nexus utriusque mundi, composed of a body and a soul, possessed of faculties intellectual and moral, finds or makes a system of regulations, by which his various and important nature, in every period of his existence, and in every situation, in which he can be placed, may be preserved, improved, and perfected. The celestial as well as the terrestrial world knows its exalted but prescribed course. This angels and the spirits of the just, made perfect, do "clearly behold, and without any swerving observe." Let humble reverence attend us as we proceed. The great and incomprehensible Author, and Preserver, and Ruler of all things ― he himself works not without an eternal decree.
Such ― and so universal is law. "Her seat," to use the sublime language of the excellent Hooker,19 "is the bosom of God; her voice, the harmony of the world; all things in heaven and earth do her homage; the very least as feeling her care, and the greatest as not exempted from her power. Angels and men, creatures of every condition, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy."
19. Hooker 34.
Before we descend to the consideration of the several kinds and parts of this science, so dignified and so diversified, it will be proper, and it will be useful, to contemplate it in one general and comprehensive view; and to select some of its leading and luminous properties, which will serve to guide and enlighten us in that long and arduous journey, which we now undertake.
It may, perhaps, be expected, that I should be girt with a regular definition of law. I am not insensible of the use, but, at the same time, I am not insensible of the abuse of definitions. In their very nature, they are not calculated to extend the acquisition of knowledge, though they may be well fitted to ascertain and guard the limits of that knowledge, which is already acquired. By definitions, if made with accuracy ― and consummate accuracy ought to be their indispensable characteristick ― ambiguities in expression, and different meanings of the same term, the most plentiful sources of errour and of fallacy in the reasoning art, may be prevented; or, if that cannot be done, may be detected. But, on the other hand, they may be carried too far, and, unless restrained by the severest discipline, they may produce much confusion and mischief in the very stations, which they are placed to defend.
You have heard much of the celebrated distribution of things into genera and species. On that distribution, Aristotle undertook the arduous task of resolving all reasoning into its primary elements; and he erected, or thought he erected, on a single axiom, a larger system of abstract truths, than were before invented or perfected by any other philosopher. The axiom, from which he sets out, and in which the whole terminates, is, that whatever is predicated of a genus, may be predicated of every species contained under that genus, and of every individual contained under every such species.20 On that distribution likewise, the very essence of scientifick definition depends: for a definition, strictly and logically regular, "must express the genus of the thing defined, and the specifick difference, by which that thing is distinguished from every other species belonging to that genus."21
From this definition of a definition ― if I may be pardoned for the apparent play upon the word ― it evidently appears that nothing can he defined, which does not denote a species; because that only, which denotes a species, can have a specifick difference.
20. 1. Gill. (4to.) 690.
21. Reid's Ess. Int. 10, 11.
But further: a specifick difference may, in fact, exist; and yet language may furnish us with no words to express it. Blue is a species of colour; but how shall we express the specifick difference, by which blue is distinguished from green?
Again: expressions, which signify things simple, and void of all composition, are, from the very force of the terms, unsusceptible of definition. It was one of the capital defects of Aristotle's philosophy, that he attempted and pretended to define the simplest things.
Here it may be worth while to note a difference between our own abstract notions, and objects of nature. The former are the productions of our own minds; we can therefore define and divide them, and distinctly designate their limits. But the latter run so much into one another, and their essences, which discriminate them, are so subtile and latent, that it is always difficult, often impossible, to define or divide them with the necessary precision. We are in danger of circumscribing nature within the bounds of our own notions, formed, frequently, on a partial or defective view of the object before us. Fettered thus at our outset, we are restrained in our progress, and govern the course of our inquiries, not by the extent or variety of our subject, but by our own preconceived apprehensions concerning it.
This distinction between the objects of nature and our own abstract notions suggests a practical inference. Definitions and divisions in municipal law, the creature of man, may be more useful, because more adequate and more correct, than in natural objects.
By some philosophers, definition and division are considered as the two great nerves of science. But unless they are marked by the purest precision, the fullest comprehension, and the most chastised justness of thought, they will perplex, instead of unfolding ― they will darken, instead of illustrating, what is meant to be divided or defined. A defect or inaccuracy, much more an impropriety, in a definition or division, more especially of a first principle, will spread confusion, distraction, and contradictions over the remotest parts of the most extended system.
Errours in science, as well as in life, proceed more frequently from wrong principles, than from ill drawn consequences. Prava regula prima may be the parent of the most fatal enormities.
The higher an edifice is raised, the more compactly it is built, the more precisely it is carried up in a just direction ― in proportion to all these excellencies, a rent in the foundation will increase and become dangerous.
The case is the same with a radical errour at the foundation of a system. The more accurately and the more ingeniously men reason, and the farther they pursue their reasonings, from false principles, the more numerous and the more inveterate will their inconsistencies, nay, their absurdities be. One advantage, however, will result ― those absurdities and those inconsistencies will be more easily traced to their proper source. When the string of a musical instrument has a fault only in one place, you know immediately how and where to find and correct it.
Influenced by these admonitory truths, I hesitate, at present, to give a definition of law. My hesitation is increased by the fate of the far greatest number of those, who have hitherto attempted it. Many, as it is natural to suppose, and laboured have been the efforts to infold law within this scientifick circle; but little satisfaction ― little instruction has been the result. Almost every writer, sensible of the defects, the inaccuracies, or the improprieties of the definitions that have gone before him, has endeavoured to supply their place with something, in his own opinion, more proper, more accurate, and more complete. He has been treated by his successours, as his predecessors have been treated by him: and his definition has had only the effect of adding one more to the lengthy languid list. This I know, because I have taken the trouble to read them in great numbers; but because I have taken the trouble to read them, I will spare you the trouble of hearing them ― at least, the greatest part of them.
Some of them, indeed, have a claim to attention one, in particular, will demand it, for reasons striking and powerful ― I mean that given by the Commentator on the laws of England.
Let us proceed carefully, patiently, and minutely to examine it. If I am not deceived, the examination will richly compensate all the time, and trouble, and investigation, that will be allotted to it; for it will be uncommonly fruitful in the principles, and in the consequences of the great truths and important disquisitions, which it will lead in review before us. "Law," says he, "in its most general and comprehensive sense, signifies a rule of action."22 In its proper signification, a rule is an instrument, by which a right line ― the shortest and truest of all ― may be drawn from one point to another. In its moral or figurative sense, it denotes a principle or power, that directs a man surely and concisely to attain the end, which he proposes.
22. 1. Bl. Com. 38.
Law is called a rule, in order to distinguish it from a23 sudden, a transient, or a particular order: uniformity, permanency, stability, characterize a law.
23. 1. Bl. Com. 44.
Again; law is called a rule, to denote that it carries along with it a power and principle of obligation. Concerning the nature and the cause of obligation, much ingenious disputation has been held by philosophers and writers on jurisprudence. Indeed the sentiments entertained concerning it have been so various, that an account of them would, in the estimation of my Lord Kaims, be a "delicate historical morsel."
This interesting subject will claim and obtain our attention, next after what we have to say concerning law in general.
When we speak of a rule with regard to human conduct, we imply two things. 1. That we are susceptible of direction. 2. That, in our conduct, we propose an end. The brute creation act not from design. They eat, they drink, they retreat from the inclemencies of the weather, without considering what their actions will ultimately produce. But we have faculties, which enable us to trace the connexion between actions and their effects; and our actions are nothing else but the steps which we take, or the means which we employ, to carry into execution the effects which we intend.
Hooker, I think, conveys a fuller and stronger conception of law, when he tells us, that "it assigns unto each thing the kind, that it moderates the force and power, that it appoints the form and measure of working."24 Not the direction merely, but the kind also, the energy, and the proportion of actions is suggested in this description.
Some are of opinion, that law should be defined25 "a rule of acting or not acting; " because actions may be forbidden as well as commanded. But the same excellent writer, whom I have just now cited, gives a very proper answer to this opinion, and shows the addition to be unnecessary, by finely pursuing the metaphor, which we have already mentioned. "We must not suppose that there needeth one rule to know the good, and another to know the evil by. For he that knoweth what is straight, doth even thereby discern what is crooked. Goodness in actions is like unto straightness; wherefore that which is well done, we term right."26
After this dry description of the literal and metaphorical meaning of a rule, permit me to relax your strained attention by a critical remark. In the philosophy of the human mind, it is impossible altogether to avoid metaphorical expressions. Our first and most familiar notions are suggested by material objects; and we cannot speak intelligibly of those that are immaterial, without continual allusions to matter and the qualities of matter.
24. Hooker 2.
25. Daws. Orig. Laws, 4.14.
26. Hooker 11.
Besides, in teaching moral science, the use of metaphors is not only necessary, but, if prudent, and honest, and guarded, it is highly advantageous. Nature has endowed us with the faculty of imagination, that we may be enabled to throw warming as well as enlightening rays upon truth ― to embellish, to recommend, and to enforce it. Truth may, indeed, by reasoning, be rendered evident to the understanding; but it cannot reach the heart, unless by means of the imagination. To the imagination metaphors are addressed.
From this short excursion into the field of criticism, let us return to our legal tract. Law is a rule "prescribed." A simple resolution, confined within the bosom of the legislator, without being notified, in some fit manner, to those for whose conduct it is to form a rule, can never, with propriety, be termed a law.
There are many ways by which laws may be made sufficiently known. They may be printed and published. Written copies of them may be deposited in publick libraries, or other places, where every one interested may have an opportunity of perusing them. They may be proclaimed in general meetings of the people. The knowledge of them may be disseminated by long and universal practice. "Confirmed custom," says a writer on Roman jurisprudence, "is deservedly considered as a law. For since written laws wind us for no other reason than because they are received by the judgment of the people; those laws, which the people have approved, without writing, are also justly obligatory on all. For where is the difference, whether the people declare their will by their suffrage, or by their conduct? This kind of law is said to be established by27 manners."28
Of all yet suggested, the mode for the promulgation of human laws by custom seems the most significant, and the most effectual. It involves in it internal evidence, of the strongest kind, that the law has been introduced by common consent; and that this consent rests upon the most solid basis ― experience as well as opinion. This mode of promulgation points to the strongest characteristick of liberty, as well as of law. For a consent thus practically given, must have been given in the freest and most unbiassed manner.
With pleasure you anticipate the prospect of a species of law, to which these remarks have already directed your attention. If it were asked ― and it would be no improper question ― who of all the makers and teachers of law have formed and drawn after them the most, the best, and the most willing disciples; it might be not untruly answered ― custom.
Laws may be promulgated by reason and conscience, the divine monitors within us. They are thus known as effectually, as by words or by writing: indeed they are thus known in a manner more noble and exalted. For, in this manner, they may be said to be engraven by God on the hearts of men: in this manner, he is the promulgator as well as the author of natural law.