THE
WORKS
OF
THE HONOURABLE
JAMES WILSON, L. L. D.
LATE ONE OF THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES, AND PROFESSOR OF LAW IN THE COLLEGE OF PHILADELPHIA.
PUBLISHED UNDER THE DIRECTION
OF
BIRD WILSON, ESQUIRE.
LEX FUNDAMENTUM EST LIBERTATIS, QUA FRUIMUR. LEGUM OMNES SERVI SUMUS, UT LIBERI ESSE POSSIMUS. ― CIC.
VOL. I.
PHILADELPHIA:
AT THE LORENZO PRESS, PRINTED FOR BRONSON AND CHAUNCEY.
1804.
DISTRICT OF PENNSYLVANIA: ― TO WIT.
BE IT REMEMBERED, That on the fifth day of July, in the twenty ninth year of the independence of the United States of America, BIRD WILSON, Esquire, of the said district, hath deposited in this office the title of a book, the right whereof he claims as proprietor, in the words following, to wit:
"The Works of the Honourable James Wilson, L. L. D. late one of the Associate Justices of the Supreme Court of the United states, and Professor of Law in the College of Philadelphia. Published under the direction of Bird Wilson, Esquire. Lex fundamentum est libertatis, qua fruimur. Legum omnes servi sumus, ut liberi esse possimus." ― Cic.
In conformity to the act of the Congress of the United States entitled "An act for the encouragement of learning by securing the copies of maps, charts and books to the authors and proprietors of such copies during the times therein mentioned; and also to the act entitled "An act supplementary to an act entitled "An act for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies during the times therein mentioned," and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints."
D. CALDWELL, Clerk of the
District of Pennsylvania.
PREFACE.
THE incomplete state of the lectures on law, notwithstanding the lapse of several years between the time at which those now published were delivered and the death of the Author, is a circumstance of which the publick will naturally inquire the cause. The circumstance itself is certainly much to be lamented; but its clause presents a subject of still deeper regret.
The law professorship, in the college of Philadelphia, was established in the year 1790; and the Author was appointed the first professor. The extent of his plan of lectures rendered it impossible for him to go through his whole subject in one season: three courses were necessary for the purpose. The first course, which was delivered in the winter of 1790-91, consisted of those lectures contained in what the Editor has entitled the first part. The second course, which was, in a great measure, delivered in the following winter, would have consisted of the remaining two parts now published. In April, 1792, the college of Philadelphia and the university of Pennsylvania were, by an act of assembly, united into one seminary, under the latter title. A law professorship was erected in the new seminary, and the Author again appointed to fill the chair; but no lectures were delivered after the union. The preceding course had been interrupted and was not completed. The causes of these circumstances are not within the Editor's knowledge. He knows, however, that, though the delivery of the lectures was discontinued, the Author designed to complete his plan for publication. From this design his attention was drawn by another object of more importance, in which he was engaged.
In March, 1791, the house of representatives in the general assembly of Pennsylvania, resolved to appoint a person to revise and digest the laws of the commonwealth; to ascertain and determine how far any British statutes extended to it; and to prepare bills, containing such alterations, additions, and improvements as the code of laws, and the principles and forms of the constitution then lately adopted might require. The Author was unanimously appointed for that purpose. The nature of the plan which he formed in consequence of this resolution, will appear from the following letter on the subject, delivered to the speaker of the house of representatives on 24th August, 1791.
SIR,
WHILE I am employed in executing the trust committed to me by the house of representatives, it is, I conceive, my duty, from time to time, to inform them, through you, of the steps which I have taken, and of those which I mean to take, in order to accomplish the great end which is in contemplation.
From the records deposited in the rolls office, I have taken an account of all the laws made in Pennsylvania from its first settlement till the beginning of the last session of the legislature. They are in number one thousand seven hundred and two. Their titles I have entered into a book, in the order, usually chronological, in which they are recorded. On some of them, especially those of an early date, I have made and minuted remarks: and have left ample room for more, in the course of my further investigations. I have also reduced their several subjects into an alphabetical order, by entering them regularly in a common place book. This process required time, and care, and a degree of minute drudgery; but it was absolutely requisite to the correct execution of the design. Mow can I make a digest of the laws, without having all the laws upon each head in my view? This view can in the first instance be obtained only by ranging them in an exact common place.
But something more must still be done. To rank, in a correct edition, the several laws according to their seniority or to the order of the alphabet would, by no means, be correspondent to the enlarged plan signified by the resolutions of the house. It is obvious, and it was certainly expected, that, under each head, the different regulations, however dispersed, at present, among numerous laws, should, in the digest, be collected in a natural series, and reduced to a just form. This I deem an indispensable part of my business.
But the performance of this indispensable part gives rise to a new question. In what order should the methodised collections be arranged?
A chronological order would, from the nature of those collections, be impracticable: an alphabetical order would be unnatural and unsatisfactory. The order of legitimate system is the only one, which remains. This order, therefore, is necessarily brought into my contemplation. My contemplation of it has been attended with the just degree of diffidence and solicitude. To form the mass of our laws into a body compacted and well proportioned, is a task of no common magnitude. Arduous as it is, the enlarged views of the house of representatives stimulate me to attempt it. In such an attempt it will not be dishonourable ― even to fail.
Of this system, I have begun to sketch the rough outlines. In finishing them, and in filling them up, I mean to avail myself of all the assistance, which can possibly be derived from every example set before me. But, at the same time, I mean to pay implicit deference to none.
The acts of the legislature of Pennsylvania, though very numerous, compose but a small proportion of her laws. The common law is a part, and, by far, the most important part of her system of jurisprudence. Statute regulations are intended only for those cases, comparatively few, in which the common law is defective, or to which it is inapplicable: to that law, those regulations are properly to be considered as a supplement. A knowledge of that law should, for this reason, precede, or, at least, accompany the study of those regulations.
"To know what the common law was before the making of any statute," says my Lord Coke, in his familiar but expressive manner, "is the very lock and key to set open the windows of the statute."a To lay the statute laws before one who knows nothing of the common law, amounts, frequently, to much the same thing as laying every third or fourth line of a deed before one who has never seen the residue of it. It would, therefore, be highly eligible, that, under each head of the statute law, the common law, relating to it, should be introduced and explained. This would he a useful commentary on the text of the statute law, and would, at the same time, form a body of the common law reduced into a just and regular system.
With such a commentary, the digest which I shall have the honour of reporting to the house will be accompanied. The constitution of the United States and that of Pennsylvania, compose the supreme law of the land: they contain and they suggest many of the fundamental principles of jurisprudence, and must have a governing and an extensive influence over almost every other part of our legal system. They should, therefore, be explained and understood in the clearest and most distinct manner, and they should be pursued through their numerous and important, though remote and widely ramified effects. Hence it is proper, that they also should be attended with a commentary. These commentaries will not, however, form a part of my report: they must stand or fall by their own merit or insignificance.
Another question, of very considerable importance, has occurred to me: the result of my reflections upon it, I beg leave to lay before the house.
a 3. Ins. 308.
In what manner should the digest of the laws of Pennsylvania be composed? Should it imitate the style of the British acts of parliament and those statutes, which have been framed upon their model ― or should it be written in the usual forms of composition?
To professional gentlemen it is well known, that, in England, all hills were anciently drawn in the form of petitions; that these petitions, with the king's answer, were entered upon the parliament rolls; and that, at the end of each parliament, they were reduced into statutes by the judges. Hence the form, "may it please your majesty, that it may be enacted" and "be it enacted, &c."
This form, like many others, has been continued in England long after the reason of it has ceased. This form, like many others, has been introduced into the colonies, and, among the rest, into Pennsylvania, where the reason of it never existed. Thus almost every sentence in our acts of assembly begins with a "be it enacted." This form, though without foundation in Pennsylvania, is not, however, without its inconveniences. To introduce every sentence under the government of a verb, gives a stiffness ― to introduce every sentence under the government of the same verb, gives a monotony as well as stiffness, to the composition. To avoid the frequent reiteration of those blemishes, the sentences are lengthened. By being lengthened, they are crowded with multifarious, sometimes with heterogeneous and disjointed, circumstances and materials. Hence the obscure, and confused, and embarrassed periods of a mile, with which the statute books are loaded and disgraced.
But simplicity and plainness and precision should mark the texture of a law. It claims the obedience ― it should be level to the understanding of all.
By the first assembly of Pennsylvania an act was made for teaching the laws in the schools."b This noble regulation is countenanced by the authority and example of the most enlightened nations and men. Ciceroc informs us, that when he was a boy, the laws of the twelve tables were learned "ut necessarium carmen," as a piece of composition at once necessary and entertaining. The celebrated legislator of the Cretans used all the precautions, which human prudence could suggest, to inspire the youth with the greatest respect and attachment to the maxims and customs of the state. This was what Plato found most admirable in the laws of Minos.
If youth should be educated in the knowledge and love of the laws: it follows, that the laws should be proper objects of their attachment, and proper subjects of their study. Can this be said concerning a statute book drawn up in the usual style and form? Would any one select such a composition to form the taste of his son, or to inspire him with a relish for literary accomplishments? It has been remarked, with truth as well as wit, that one of the most irksome penalties, which could be inflicted by an act of parliament, would be, to compel the culprit to read the statutes at large from the beginning to the end.
But the knowledge of the laws, useful to youth, is incumbent on those of riper years.
b R. O. book. A, p. 22.
c De leg. l. 2. c. 23.
From the manner, in which other law books, as well as statute laws, are usually written, it may be supposed that law is, in its nature, unsusceptible of the same simplicity and clearness as the other sciences. It is high time that law should be rescued from this injurious imputation. Like the other sciences, it should now enjoy the advantages of light, which have resulted from the resurrection of letters; for, like the other sciences, it has suffered extremely from the thick veil of mystery spread over it in the dark and scholastick ages.
Both the divinity and law of those times, says Sir William Blackstone,d were frittered into logical distinctions, and drawn out into metaphysical subtilties, with a skill most amazingly artificial. Law in particular, which (being intended for universal reception) ought to be a plain rule of action, became a science of the greatest intricacy; especially when blended with the new and oppressive refinements ingrafted upon feodal property: which refinements were, from time to time, gradually introduced by the Norman practitioners, with a view to supersede (as they did in a great measure) the more homely, but the more free and intelligible, maxims of distributive justice among the Saxons.
As were the divinity and the law, such likewise was the philosophy of the schools during many ages of darkness and barbarism. It was fruitful of words, but barren of works, and admirably contrived for drawing a veil over human ignorance, and hitting a stop to the progress of knowledge.e But at last the light began to dawn. It has dawned, however, much slower upon the law,
d Bl. Com, 410. 2. Id. 58.
e Reid. Ess. Int. 127.
than upon religion and philosophy. "The laws," says the celebrated Beccaria,f "are always several ages behind the actual improvement of the nation which they govern." If this observation is true, and I believe it to be true, with regard to law in general; it is peculiarly true, and its truth is of peculiar importance, with regard to criminal law in particular. It is the observation of Sir William Blackstone, that, in every country of Europe, the criminal is more rude and imperfect than the civil law. Unfortunate it is that this should be the case. For on the excellence of the criminal law the liberty and happiness of the citizens chiefly depend.
We are told by Montesquieu, that the knowledge, with regard to the surest rules, observed in criminal judgments, is more interesting to mankind than any other thing in the universe. We are told by him further, that liberty can be founded only on the practice of this knowledge. But how can this knowledge be acquired ― how can it become the foundation of practice, if the laws, and particularly the criminal laws, are written in a manner in which they cannot be clearly known or understood.
Deeply penetrated with the truth and the force of these remarks, which are supported by the most respectable authorities, I shall not justly incur the censure of innovation, if I express my opinion, that the law should be written in the same manner, which we use when we write on other subjects, or other sciences. This manner has been already adopted, with success, in the Constitution of the United States, and in that of Pennsylvania.
f C. 29.
As, however, the observations, which I have made and quoted, bear particularly upon the criminal code; I propose to make, in that code, the first experiment of their justness and efficacy.
The criminal law, though the most important, is by far the least voluminous part of the system; and it can be easily formed into a separate report. This I mean to do. By doing so, I shall have a fair opportunity of exhibiting a specimen of the manner and the, merits both of my plan and of its execution.
To the Speaker of the House of Representatives.
In the execution of this plan, the Author made very considerable progress. It had been undertaken, however, under the authority of only one of the houses of the assembly, without the sanction of the other; and, in the course of its execution, it was found, that the want of legislative sanction, and of a provision for making pecuniary compensation to persons necessarily employed as assistants in a work of so much labour and importance, joined with the difficulty of obtaining many useful and necessary books connected with the subject of the work, had retarded its progress, and thrown considerable impediments in the way of its completion. An attempt was made to remove these obstacles; and a bill was passed for that purpose by the house of representatives; but it was unfortunately negatived by the senate. The design of framing a digest under the authority of the legislature was, of course, relinquished. But the Author still contemplated the execution of a similar design, as a private work; supported only by his own name; and it occupied, for a long time, his assiduous attention. He had, in a great degree, prepared the materials; but did not live to arrange them, and compose the contemplated digest.
From these causes, the lectures continued in the state, in which they now appear. The Editor has not thought himself at liberty to make any alterations in the language of the Author: the lecturing style is, therefore, retained. He has, however, been obliged to adopt a division not, perhaps, strictly in unison with that style, but the only one which was in his power ― that into parts and chapters, according to the subjects. They were never divided by the Author into distinct lectures; as, according to his mode of delivering them, they were frequently attended with recapitulations, and often embraced parts of his observations on different subjects.
Of the other parts of the contents of these volumes, the tracts on the legislative authority of parliament over the colonies, and on the Bank of North America, were before published; as were also the speech in convention on 26th November, 1787, and the oration on 4th July, 1788. These, with the other speeches now published, appear to have been selected for publication by the Author himself. His charges to grand juries in the federal courts, the Editor has not thought it proper to insert; because, as they related generally to the history, powers, and duties of juries, the contents of them are to be found in the lectures. One, however, he has selected and inserted, because it contains a concise and handsome view of the criminal law of the United States, nearly as it stands at present, and many important observations not to be found in the other works.
Of the value and merit of these volumes, the Editor will say nothing. He leaves that subject to the judgment of those who can estimate them with greater impartiality. In some parts, perhaps, they want that degree of polish, which the farther attention and corrections of the Author might have bestowed on them; and repetitions, which sometimes occur, and which, in lectures delivered, are not only excusable but proper, would probably not have been met with, had they been corrected by himself for the press. On the whole, however, the Editor trusts, that they will not be thought unworthy, either in style or sentiment, of the reputation of their Author.
CONTENTS
OF THE
FIRST VOLUME.
LECTURES ON LAW.
PART I.
PAGE.
CHAPTER I.
Of the study of the law in the United States, 3
CHAPTER II.
Of the general principles of law and obligation, 55
CHAPTER III.
Of the law of nature, 107
CHAPTER IV.
Of the law of nations, 145
CHAPTER V.
Of municipal law, 179
CHAPTER VI.
Of man, as an individual, 229
CHAPTER VII.
Of man, as a member of society, 283
CHAPTER VIII.
Of man, as a member of a confederation, 319
CHAPTER IX.
Of man, as a member of the great commonwealth of nations, 359
CHAPTER X.
Of government, 383
CHAPTER XI.
Comparison of the constitution of the United States, with that of Great Britain, 425
LECTURES ON LAW,
DELIVERED IN THE
COLLEGE OF PHILADELPHIA,
IN THE YEARS ONE THOUSAND SEVEN HUNDRED AND NINETY,
AND ONE THOUSAND SEVEN HUNDRED AND NINETY ONE.
PART I.
CHAPTER I.
INTRODUCTORY LECTURE.
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.
PLAN.
GENTLEMEN,
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.
CHAPTER II.
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.
27. D. l. 1. t. 3, 32. p. 1.
28. The first written laws in Greece were given only six centuries before the christian era. ― 1. Gill. 7. (4to.)
If a simple resolution cannot have the force of a law before it be promulgated; we may certainly hazard the position ― that it cannot have the force of a law, before it be made: in other words, that ex post facto instruments, claiming the title and character of laws, are impostors.
Peculiarly striking, upon this subject, are the sentiments of the criminal and unfortunate Strafford. I call him criminal, because he acted; I call him unfortunate, because he suffered, against the laws of his country. His sentiments must make a deep impression upon others; because, when he spoke them, he must have been deeply impressed with them himself. When he spoke them, he stood under a bill of attainder, suspended only by the slender thread of political justice, and ready, like the sword of Damocles, to fall on his devoted head. "Do we not live by laws? And must we be punished by laws before they are made? Far better were it to live by no laws at all, than to put this necessity of divination upon a man, and to accuse him of the breach of a law, before it be a law at all."29
29. Whitlocke 230.
In criminal jurisprudence, a Janus statute, with one face looking backward, and another looking forward, is a monster indeed.
The definition of law in the Commentaries proceeds in this manner. "Law is that rule of action, which is prescribed by some superiour, and which the inferiour is bound to obey." A superiour! Let us make a solemn pause ― Can there be no law without a superiour? Is it essential to law, that inferiority should be involved in the obligation to obey it? Are these distinctions at the root of all legislation?
There is a law, indeed, which flows from the Supreme of being ― a law, more distinguished by the goodness, than by the power of its allgracious Author. Put there are laws also that are human; and does it follow, that, in these, a character of superiority is inseparably attached to him, who makes them; and that a character of inferiority is, in the same manner, inseparably attached to him, for whom they are made? What is this superiority? Who is this superiour? By whom is he constituted? Whence is his superiority derived? Does it flow from a source that is human? Or does it flow from a source that is divine?
From a human source it cannot flow; for no stream issuing from thence can rise higher than the fountain.
If the prince, who makes laws for a people, is superiour, in the terms of the definition, to the people, who are to obey; how comes he to be vested with the superiority over them?
If I mistake not, this notion of superiority, which is introduced as an essential part in the definition of a law ― or we are told that a law always30 supposes some superiour, who is to make it ― this notion of superiority contains the germ of the divine right ― a prerogative impiously attempted to be established ― of princes, arbitrarily to rule; and of the corresponding obligation ― a servitude tyrannically attempted to be imposed ― on the people, implicitly to obey.
30. 1. Bl. Com. 43.
Despotism, by an artful use of "superiority" in politicks; and scepticism, by an artful use of "ideas" in metaphysicks, have endeavoured ― and their endeavours have frequently been attended with too much success ― to destroy all true liberty and sound philosophy. By their baneful effects, the science of man and the science of government have been poisoned to their very fountains. But those destroyers of others have met, or must meet, with their own destruction.
We now see, how necessary it is to lay the foundations of knowledge deep and solid. If we wish to build upon the foundations laid by another, we see how necessary it is cautiously and minutely to examine them. If they are unsound, we see how necessary it is to remove them, however venerable they may have become by reputation; whatever regard may have been diffused over them by those who laid them, by those who built on them, and by those who have supported them.
But was Sir William Blackstone a votary of despotick power? I am far from asserting that he was. I am equally far from believing that Mr. Locke was a friend to infidelity. But yet it is unquestionable, that the writings of Mr. Locke have facilitated the progress, and have given strength to the effects of scepticism.
The high reputation, which he deservedly acquired for his enlightened attachment to the mild and tolerating doctrines of christianity, secured to him the esteem and confidence of those, who were its friends. The same high and deserved reputation inspired others of very different views and characters, with a design to avail themselves of its splendour, and, by that means, to diffuse a fascinating kind of lustre over their own tenets of a dark and sable hue. The consequence has been, that the writings of Mr. Locke, one of the most able, most sincere, and most amiable assertors of christianity and true philosophy, have been perverted to purposes, which he would have deprecated and prevented, had he discovered or foreseen them.
Berkeley, the celebrated bishop of Cloyne, wrote his Principles of human Knowledge ― a book intended to disprove the existence of matter ― with the express view of banishing scepticism both from science and from religion. He was even sanguine in his expectations of success. But the event has proved that he was egregiously mistaken; for it is evident, from the use to which later authors have applied it, that his system leads directly to universal scepticism.
Similar, though in an inferiour degree, have been, and may be, the fate and the influence of the writings and character of Sir William Blackstone; even admitting that he was as much a friend to liberty, as Locke and Berkeley were friends to religion.
But in prosecuting the study of law on liberal principles and with generous views, our business is much less with the character of the Commentaries or of their author, than with the doctrines which they contain. If the doctrines, insinuated in the definition of law, can be supported on the principles of reason and science; the defence of other principles, which I have thought to be those of liberty and just government, becomes ― I am sorry to say it ― a fruitless attempt.
Sir William Blackstone, however, was not the first, nor has he been the last, who has defined law upon the same principles, or upon principles similar and equally dangerous.
This subject is of such radical importance, that it will be well worth while to trace it as far as our materials can carry us; for errour as well as truth should be examined historically, and pursued back to its original springs.
By comparing what is said in the Commentaries on this subject, with what is mentioned concerning it in the system of morality, jurisprudence, and politicks written by Baron Puffendorff, we shall be satisfied that, from the sentiments and opinions delivered in the last mentioned performance, those in the first mentioned one have been taken and adopted. "A law," says Puffendorff, "is the command of a superiour."31 "A law," says Sir William Blackstone, "always supposes some superiour, who is to make it."32
The introduction of superiority, as a necessary part of the definition of law, is traced from Sir William Blackstone to Puffendorff. This definition of Puffendorff is substantially the same with that of Hobbes." A law is the command of him or them, that have the sovereign power, given to those that be his or their subjects."33 It is substantially the same also with that of Bishop Saunderson. "Law is a rule of action, imposed on a subject, by one who has power over him."34
31. Puff. B. 1. c. 2. s. 6. p. 16. B. 1. c. 6. s. 1. 2. p. 56, 57.
32. 1. Bl. Com. 43.
33. 3. Dagge 95. 96.
34. Daws. Orig. L. 3. cites Saund. Præl. 5. s. 3.
Let us now inquire what is meant by superiority, that we may be able to ascertain and recognise those qualities, inherent or derivative, which entitle the superiour or sovereign to the transcendent power of imposing laws.
We can distinguish two kinds of superiority. 1. A superiority merely of power. 2. A superiority of power, accompanied with a right to exercise that power. Is the first sufficient to entitle its possessor to the character and office of a legislator? If we subscribe to the doctrines of Mr. Hobbes, we shall say, that it is. "To those," says he, "whose power is irresistible, the dominion of all men adhereth naturally, by their excellence of power."35
This position, strange as it is, has had its advocates in ancient as well as in modern times. Even the accomplished Athenians, who excluded it from their municipal code, seem to have considered it as part of the received law of nations. "We follow," says their ambassadour in the name of his commonwealth, "the common nature and genius of mankind, which appoints those to be masters, who are superiour in strength. We have not made this law; nor are we the first, who have appealed to it. We received it from antiquity: we are determined to transmit it to the most distant futurity: and we claim and use it in our own case."36
35. De Cive 187. (Puff. 64.)
36. Puff. 65. (Thucyd.1. 5. c. 105) 1. Anac. 351.
Brennus, at the head of his victorious and ferocious Gauls, with more conciseness, and with a less striking inconsistency of character, tells the vanquished Romans "omnia fortium esse."37 Everything belongs to the bold and the strong.
The prudent Plutarch thinks it "the first and principal law of nature, that he whose circumstances require protection and deliverance, should admit him for his ruler, who is able to protect and deliver him."38
For us, it is sufficient, as men, as citizens, and as states, to say, that power is nothing more than the right of the strongest, and may be opposed by the same right, by the same means, and by the same principles, which are employed to establish it. Bare force, far from producing an obligation to obey, produces an obligation to resist.
Others, unwilling to rest the office of legislation and the right of sovereignty simply on superiority of power, have to this quality superadded preeminence or superiour excellence of nature.
Let it be remembered all along, that I am examining the doctrine of superiority, as applied to human laws, the proper and immediate object of investigation in these lectures. Of the law that is divine, we shall have occasion, at another time, to speak, with the reverence and gratitude which become us.
37. Puff. 65. (Livy.)
38. Puff 65. (Plut. in Pelop.)
"It is a law of nature," says Dionysius of Halicarnassus, "common to all men, and which no time shall disannul or destroy, that those, who have more strength and excellence, shall bear rule over those, who have less."39 The favourers of this opinion are unfortunate, both in the illustrations, by which they attempt to evince it; and in the inferences, to which they contend it gives rise.
Because Cicero, by a beautiful metaphor, describes the government of the other powers of the mind as assigned, by nature, to the understanding; does it follow that, in strict propriety of reasoning, the right of legislation is annexed, without any assignment, to superiour excellence?
Aristotle, it seems, has said, that if a man could be found, excelling in all virtues, such an one would have a fair title to be king. These words may well be understood as conveying, and probably were intended to convey, only this unquestionable truth ― that excellence in every virtue furnished the strongest recommendation, in favour of its happy possessor, to be elected for the exercise of authority. If so, the opinion of Aristotle is urged without a foundation properly laid in the fact.
39. Puff. 65. (Dion. Hal. b. 1. c. 5.)
But let us suppose the contrary: let us suppose it to be the judgment of Aristotle, that the person, whom he characterizes, derived his right to the exercise of power, not from the donation made to him by a voluntary election, but solely from his superiour talents and excellence; shall the judgment of Aristotle supersede inquiry into its reasonableness? Shall the judgment of Aristotle, if found, on inquiry, to be unreasonable, silence all reprehension or confutation? Decent respect for authority is favourable to science. Implicit confidence is its bane. Let us adopt ― for it is necessary, in the cause of truth and freedom, that we should adopt ― the manly expostulation, which the ardent pursuit of knowledge drew from the great Bacon ― "Why should a few received authors stand up like Hercules's columns, beyond which there should be no sailing or discovery?"
To Aristotle, more than to any other writer, either ancient or modern, this expostulation is strictly applicable. Hear what the learned Grotius says on this subject. "Among philosophers, Aristotle deservedly holds the chief place, whether you consider his method of treating subjects, or the acuteness of his distinctions, or the weight of his reasons. I could only wish that the authority of this great man had not, for some ages past, degenerated into tyranny; so that truth, for the discovery of which Aristotle took so great pains, is now oppressed by nothing more than by the very name of Aristotle."40
40. Gro. Prel. 28.
Guided and supported by the sentiments and by the conduct of Grotius and Bacon, let us proceed, with freedom and candour combined, to examine the judgment ― though I am very doubtful whether it was the judgment of Aristotle, that the right of sovereignty is founded on superiour excellence.
To that superiority, which attaches the right to command, there must be a corresponding inferiority, which imposes the obligation to obey. Does this right and this obligation result from every kind and every degree of superiority in one, and from every kind and every degree of inferiority in another? How is excellence to be rated or ascertained?
Let us suppose three persons in three different grades of excellence. Is he in the lowest to receive the law immediately from him in the highest? Is he in the highest to give the law immediately to him in the lowest grade? Or is there to be a gradation of law as well as of excellence? Is the command of the first to the third to be conveyed through the medium of the second? Is the obedience of the third to be paid, through the same medium, to the first? Augment the number of grades, and you multiply the confusion of their intricate and endless consequences.
Is this a foundation sufficient for supporting the solid and durable superstructure of law? Shall this foundation, insufficient as it is, be laid in the contingency ― allowed to be improbable, not asserted to be even possible ― "if a man can be found, excelling in all virtues?"
Had it been the intention of Providence, that some men should govern the rest, without their consent, we should have seen as indisputable marks distinguishing these superiours from those placed under them, as those which distinguish men from the brutes. The remark of Rumbald, in the nonresistance time of Charles the second, evinced propriety as well as wit. He could not conceive that the Almighty intended, that the greatest part of mankind should come into the world with saddles on their backs and bridles in their mouths, and that a few should come ready booted and spurred to ride the rest to death.41 Still more apposite to our purpose is the saying of him, who declared that he would never subscribe the doctrine of the divine right of princes, till he beheld subjects born with bunches on their backs, like camels, and kings with combs on their heads, like cocks; from which striking marks it might indeed be collected, that the former were designed to labour and to suffer, and the latter, to strut and to crow.42
41. 1. Burgh. Pol. Dis. 3.
42. Boling. Rem. 209.
These pretensions to superiority, when viewed from the proper point of sight, appear, indeed absurd and ridiculous. But these pretensions, absurd and ridiculous as they are, when rounded and gilded by flattery, and swallowed by pride, have become, in the breasts of princes, a deadly poison to their own virtues, and to the happiness of their unfortunate subjects. Those, who have been bred to be kings, have generally, by the prostituted views of their courtiers and instructors, been taught to esteem themselves a distinct and superiour species among men, in the same manner as men are a distinct and superiour species among animals.
Lewis the fourteenth was a strong instance of the effect of that inverted manner of teaching and thinking, which forms kings to be tyrants, without knowing or even suspecting that they are so. That oppression, under which he held his subjects, during the whole course of his long reign, proceeded chiefly from the principles and habits of his erroneous education. By this, he had been accustomed to consider his kingdom as his patrimony, and his power over his subjects as his rightful and undelegated inheritance. These sentiments were so deeply and strongly imprinted on his mind, that when one of his ministers represented to him the miserable condition to which those subjects were reduced, and, in the course of his representation, frequently used the word "l'etat," the state; the king, though he felt the truth, and approved the substance of all that was said, yet was shocked at the frequent repetition of the word "l'etat," and complained of it as an indecency offered to his person and character.
And, indeed, that kings should imagine themselves the final causes, for which men were made, and societies were formed, and governments were instituted, will cease to be a matter of wonder or surprise, when we find that lawyers, and statesmen, and philosophers have taught or favoured principles, which necessarily lead to the same conclusions.
Barbeyrac, whose commentaries enrich the performances of the most distinguished philosophers, at one time, taught and favoured principles, which necessarily led to the conclusions, so degrading and so destructive to the human race. On this subject, it will be worth while to pursue his train of thought.
In the formation of societies and civil governments, three different conventions or agreements are supposed, by Puffendorff and many other writers, to have taken place. The first convention is an engagement, by those who compose the society or state, to associate together in one body; and to regulate, with one common consent, whatever regards their preservation, their security, their improvement, and their happiness. The second convention is, to specify the form of government, that shall be established among them. The third convention is an engagement between the following parties; that is to say, the person or persons, on whom the sovereignty, or superiority, or majesty ― for it is called by all these names ― is conferred, on one hand; and, on the other hand, those who have conferred this sovereignty, this superiority, this majesty; and are now, by that step, as it seems, become subjects. By this third convention, the sovereign engages to consult the common security and advantage of the subjects; and the subjects engage to observe fidelity and allegiance to the sovereign. From this last convention, the state is supposed to receive its final completion and perfection.
This account of the origin of society and government will be fully considered afterwards. I introduce it now, in order to show the force and import of Barbeyrac's observation concerning it. "The first convention," says he, "is only, with regard to the second, what scaffolding is with regard to the building, for whose construction it was erected."43 And is it so? Is society nothing more than a scaffolding, by the means of which government may be erected; and which, consequently, may be prostrated, as soon as the edifice of civil government is built? If this is so, it must have required but a small portion of courtly ingenuity to persuade Lewis the fourteenth, that, in a monarchy, government was nothing but a scaffolding for the king.
43. Puff. 641. note to b. 7. c. 2. s. 8.
For the honour of Barbeyrac, however, let not this account be concluded, till it be told, that this did not continue to be always his sentiment; that, on consideration and reflection, this sentiment was changed; and that, when it was changed, he, as every other great and good man will do on similar occasions, freely and nobly retracted it. But although it has been retracted by Barbeyrac, it has neither been retracted nor abandoned by some others.
To evince that I speak not without foundation, and to show, what will not be suspected till they are shown, the extravagant notions which have been entertained on this head, I will adduce a number of sentences and quotations, which Grotius44 has collected together, in order to combat the sentiments of those, who hold that the supreme power is, always and without exception, in the people.
44. Grotius 68-71.
Historians and philosophers, poets and princes, bishops and fathers, are all summoned to oppose the dangerous doctrine.
When Tacitus says, "that, as we must bear with storms, barrenness, and the inconveniences of nature, so w e must bear with the luxury or avarice of princes; " Grotius tells us, "'tis admirably said." Marcus Antoninus, the philosopher, is produced as an authority, "that magistrates are to judge of private persons, princes of magistrates, but God alone of princes." King Vitigis declares, that "what regards the royal power is to be judged by the powers above; because it is derived from heaven, and is accountable to heaven alone." Ireneus, we are informed, says excellently, "by whose orders men are born, by his command kings are ordained." The same doctrine is contained in the constitutions of Clement. "You shall fear the king, knowing that he is chosen of God."
In a tragedy of Æschylus, the suppliants use this language to the king. "Sir, you are the city and the publick; you are an independent judge. Seated upon your throne as upon an altar, you alone govern all by your absolute commands."
Here we have the very archetype of the idea of Lewis the fourteenth, sanctioned by the name of Grotius. If the king was the city and the publick; to mention "l'etat" in his presence, as something separate and distinct, was certainly an indecency; because it contained an implied though distant limitation of his power.
The reverend bishop of Tours addresses the king of France in this very remarkable manner. "If any of us, O king! should transgress the bounds of justice, he may be punished by you: but if you yourself should offend, who shall call you to account? When we make representations to you, if you please, you hear us: but if you will not, who shall condemn you? There is none but he, who has declared himself to be justice itself."
Let me also mention what Heineccius says, in much more recent times, in his System of Universal Law. "The doctrine,45 which makes the people superiour to the king or prince, and places in the former the real, and in the latter only personal majesty, is a most petulant one. It is the doctrine of Hottoman, Sidney, Milton, and others. Since a people, when they unite into a republick, renounce their own will, and subject themselves to the will of another, with what front can they call themselves superiour to their sovereign?"
45. 2. Hein. 120.121.
And yet Heineccius himself allows, that "Grotius (1. 3. 8.) is thought by not a few, to have given some handle to the doctrine of passive obedience and nonresistance."
Indeed, the lawyers of almost all the states of Europe represent kings as legislators: and we know, that, in the dictionaries of many, legislative and unlimited power are synonimous terms. To unlimited power, the correlative is passive obedience.
Even Baron de Wolfius, the late celebrated philosopher of Hall, lays down propositions concerning patrimonial kingdoms, without rejecting or contradicting a distinction, so injurious to the freedom and the rights of men.
Domat, in his book on the civil law, derives the power of governours from divine authority. "It is always he (God) who places them in the seat of authority: it is from him alone that they derive all the power and authority that they have; and it is the ministry of his justice that is committed to them. And seeing it is God himself whom they represent, in the rank which raises them above others; he will have them to be considered as holding his place in their functions. And it is for this reason, that he himself gives the name of gods to those, to whom he communicates the right of governing and judging men."46
To diminish the force of the foregoing citations, it may be said, that, in all probability, Lewis the fourteenth ― and the same may be said of other princes equally ignorant ― never read the tragedies of Æschylus, nor the history of Gregory of Tours. It is highly probable that he never did: but it is equally probable, that their sentiments were known. In his court, and found the way, through the channels of flattery, to the royal ear. But the writings of Grotius must have been well known in France, and probably to Lewis the fourteenth himself. This very book of the Rights of War and Peace was dedicated to his father, Lewis the thirteenth; and its author, we are told, had credit with some of the ministers of that prince.
Every plausible notion in favour of arbitrary power, appearing in a respectable dress, and introduced by an influential patron, is received with eagerness, protected with vigilance, and diffused with solicitude, by an arbitrary government. The consequence is, that, in such a government, political prejudices are last of all, if ever, overcome or eradicated.
But these doctrines, it may be replied, are not now believed, even in France. But they have been believed ― they have been believed, even in France, to the slavery and misery of millions. And if, happily, they are not still believed there; unfortunately, they are still believed in other countries.
46. 1. Domat XXII.
But I ask ― why should they be believed at all? I ask further: if they are not, and ought not to be believed; why is their principle suffered to lie latent and lurking at the root of the science of law? Why is that principle continued a part of the very definition of law?
The pestilent seed may seem, at present, to have lost its vegetating power: but an unfriendly season and a rank soil may still revive it. It ought to be finally extirpated. It has, even within our own remembrance, done much real mischief. The position, that law is inseparably attached to superiour power, was the political weapon used, with the greatest force and the greatest skill, in favour of the despotick claims of Great Britain over the American colonies. Of this, the most striking proofs will appear hereafter. Let me, at present, adopt the sentiments expressed, on a similar subject, by Vattel. "If the base flatterers of despotick power rise up against my principles; I shall have, on my side, the friend of laws, the true citizen, and the virtuous man."47
47. Vattel Pref 14.
Let us conclude our observations upon this hypothesis concerning the origin of sovereignty, by suggesting, that were it as solid as it is unsound in speculation, it would be wholly visionary and useless in practice. Where would minions and courtly flatterers find the objects, to which they could, even with courtly decency, ascribe superiour talents, superiour virtue, or a superiour nature, so as to entitle them, even on their own principles, to legislation and government?
We have now examined the inherent qualities, which have been alleged as sufficient to entitle, to the right and office of legislation, the superiour, whose interposition is considered as essential to a law. We have weighed them in the balance, and we have found them wanting.
If this superiour cannot rest a title on any inherent qualities; the qualities, which constitute his title, if any title he has, must be such as are derivative. If derivative; they must be derived either from a source that is human, or from a source that is divine. "Over a whole grand multitude," says the judicious48 Hooker, "consisting of many families, impossible it is, that any should have complete lawful power, but by consent of men, or by immediate appointment of God." We will consider those sources separately.
How is this superiour constituted by human authority? How far does his superiority extend? Over whom is it exercised? Can any person or power, appointed by human authority, be superiour to those by whom he is appointed, and so form a necessary and essential part in the definition of a law?
On these questions, a profound, I will not say a suspicious silence is observed. By the Author of the Commentaries, this superiour is announced in a very questionable shape. We can neither tell who he is, nor whence he comes. "When society is once formed, government results of course" ― I use the words49 of the Commentary ― "as necessary to preserve and to keep that society in order. Unless some superiour be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But as all the members of the society are naturally equal, it may he asked" ― what question may be asked? The most natural question, that occurs to me, is ― how is this superiour, without whom there can be no law, without whom there can be no judge upon earth ― how is this superiour to be constituted? This is the question, which, on this occasion, I would expect to see proposed: this is the question, to which I would expect to hear an answer. But how suddenly is the scene shifted! Instead of the awful insignia of superiority, to which our view was just now directed, the mild emblems of confidence make their appearance. The person announced was a dread superiour: but the person introduced is a humble trustee. For, to proceed, "it may be asked, in whose hands are the reins of government to be intrusted?"
48. Hooker. b. 1, s. 10. p.18.
49. 1. Bl. Com. 48.
I very well know how "a society once formed" constitute a trustee: but I am yet to learn, and the Commentator has not yet informed me, how this society can constitute their superiour. Locke somewhere says that "no one can confer more power on another, than he possesses himself."50
If the information, how a superiour is appointed, be given in any other part of the valuable Commentaries; it has escaped my notice, or my memory. Indeed it has been remarked by his successour in the chair of law, that Sir William Blackstone "declines speaking of the origin of government."51
50. Lock. Gov. p. 2. s. 6.
51. El. Jur. 23. [Wooddeson, Richard, Elements of Jurisprudence. London, 1783]
The question recurs ― how is this superiour constituted by human authority? Is he constituted by a law? If he is, that law, at least, must he made without a superiour; for by that law the superiour is constituted. If there can be no law without a superiour, then the institution of a superiour, by human authority, must be made in some other manner than by a law. In what other manner can human authority be exerted? Shall we say, that it may be exerted in a covenant or an engagement? Let us say, for we may say justly, that it may. Let us suppose the authority to be exerted, and the covenant or engagement to be made. Still the question recurs ― can this authority so exerted, can this covenant or engagement so made, produce a superiour?
If he is now entitled to that appellation, he must be so by virtue of some thing, which he has received. But has he received more than was given? Could snore be given than those, who gave it, possessed?
We can form clear conceptions of authority, original and derived, entire and divided into parts; but we have no clear conceptions how the parts can become greater than the whole; nor how authority, that is derived, can become superiour to that authority, from which the derivation is made.
If these observations are well founded; it will be difficult ― perhaps we may say, impossible ― to account for the institution of a superiour by human authority.
Is there any other human source, from which superiority can spring? 'Tis thought there is: 'tis thought that human submission can effectuate a purpose, for the accomplishment of which human authority has been found to be unavailing.
And is it come to this! Must submission to an equal be the yoke, under which we must pass, before we can diffuse the mild power, or participate in the benign influence of law? If such is, indeed, our fate, let resignation be our aim: but before we resign ourselves, let us examine whether our fate be so hard.
That I may be able to convey a just and full representation of opinions, which have been entertained on this subject, I shall give an abstract of the manner, in which Puffendorff has reasoned concerning it, in his chapter on the generation of civil sovereignty.
His object is, "to examine whence that sovereignty or supreme command, which appears in every state, and which, as a kind of soul, informs, enlivens, and moves the publick body, is immediately produced."
In this inquiry, he supposes that civil authority requires natural strength and a title. "Both these requisites," says he, "immediately flow from those pacts, by which the state is united and subsists." With regard to the former ― natural strength ― he observes, "that since all the members of the state, in submitting their wills to the will of a single director, did, at the same time, thereby oblige themselves to nonresistance, or to obey him in all his desires and endeavours of applying their strength and wealth to the good of the publick; it appears that he, who holds the sovereign rule, is possessed of sufficient force to compel the discharge of the injunctions, which he lays."
"So, likewise," adds he, "the same covenant affords a full and easy title, by which the sovereignty appears to be established, not upon violence, but in a lawful manner, upon the voluntary consent and subjection of the respective members."
"This, then," continues he, "is the nearest and immediate cause, from which sovereign authority, as a moral quality, doth result. For if we suppose submission in one party, and, in another, the acceptance of that submission; there accrues, presently, to the latter, a right of imposing commands on the former; which is what we term sovereignty or rule. And as, by private contract, the right of any thing which we possess, so, by submission, the right to dispose of our strength and our liberty of acting, may be conveyed to another."
He illustrates this immediate cause of sovereign authority, by the following instance. "If any person should voluntarily and upon covenant deliver himself to me in servitude, he thereby really confers on me the power of a master." "Against which way of arguing, to object the vulgar maxim, quod quis non habet, non potest in alterum transferre,52 is but a piece of trifling ignorance."53
52. Puff. b. 7. c. 3. s. 1. p. 654. 655.
53. All this, it is true, has been done, in fact. This act of legal suicide has been often perpetrated; and, in the history of some periods, we find the prescribed form, by which liberty was extinguished ― a form truly congenial with the transaction ― a form expressed in terms the most disgraceful to the dignity of man. "Licentiam habeatis, mihi qualemcunque volueritis disciplinam ponere, vel venumdare, aut quod vobis placuerit de me facere." (6. Gibbon 361. cites Marculf. Formul.) But these periods were the periods which introduced and established the feudal law. "The majesty of the Roman law protected the liberty of the citizen against his own distress or despair." 6. Gibbon. 360.
Shall we, for a moment, suppose all this to be done? What is left to the people? Nothing. What are they? Slaves. What will be their portion? That of the beasts ― instinct, compliance, and punishment. So true it is, that in the attempt to snake one person more than man, millions must be made less.
We now seethe price, at which law must be purchased; for we see the terms, on which a superiour, of such absolute necessity to a law, is constituted, according to the hypothesis, of which I have given an account. We see the covenants which must be entered into, the consent which must be given, the submission which must be made, the subjection which must be undergone, the state, analogous to servitude, which must be supposed, before this system of superiority can be completed. Has this been always done ― must this be always done, in every state, where law is known or felt?
Without examining its incongruity with reason, with freedom, and with fact; without insisting on the incoherence of the parts, and the unsoundness of the whole, I shall, again, for a moment, take it all for granted: and, on that supposition, I shall put the question ― Is even all this sufficient to constitute a superiour? Is it in the power of the meanest to prostitute, any more than it is in the power of the greatest to delegate, what he does not possess?54 The arguments, therefore, which we used with regard to the appointment of a superiour by human authority, will equally apply to his appointment by human submission. The manner may be different: the result will be the same.
Indeed, the author of this system betrays a secret consciousness, that it is too weak and too disjointed to stand without an extrinsick support. "Yet still," says he, "to procure to the supreme command an especial efficacy, and a sacred respect, there is need of another additional principle, besides the submission of the subjects. And therefore he who affirms sovereignty to result immediately from compact, doth not, in the least, detract from the sacred character of civil government; or maintain that princes bear rule, by human right only, and not by divine."55
It deserves remark, that, in this passage, Puffendorff assumes the divine right of princes to bear rule, as an admitted principle; and seems only solicitous to show, that the account, which he has given, of the origin of sovereignty, is not inconsistent with their sacred character.
54. Let individuals, in any number whatever, become severally and successively subject to one man, they are all, in that case, nothing more than master and slaves; they are not a people governed by their chief; they are an aggregate, if you will; but they do not form an association; there subsists among them neither commonwealth nor body politick. Such a superiour, though he should become master of half the world, would be still a private person, and his interest, separate and distinct from that of his people, would be still no more than a private interest. Rousseau's Orig. Comp. 17. 18.
55. Puff. 655. b. 7. c. 3. s.1. ― 2. Burl. 39.
After some further observations with regard to the source of government and the cause of sovereignty, the author acknowledges, that there is very little difference between his sentiments on the subject, and those of Bœcler. What Bœcler's sentiments were, we learn from the account given of them by our author. "The supreme authority,"56 says Bœcler, "is not to be derived from the bare act of man, but from the command of God, and from the law of nature; or from such an act of men, by which the law of nature was followed and obeyed."
So far Puffendorff seems willing to go. He adopts a kind of compromising principle. He founds the right of the sovereign immediately upon the submission of the subjects; but, to complete the efficacy of supreme command, he calls in the aid of an additional principle, the sacred character of civil government, and the divine right of princes to bear rule. Further he was unwilling to proceed.
It has been often the fate of a compromise between two parties, that it has given entire satisfaction to neither. Such has been the fate of that adopted by Puffendorff. Some will certainly think, that he has given too much countenance to the claim, which princes have boldly made, of a divine right to rule. Others have thought, that, into his composition of a sovereign, he has infused too great a proportion of human authority. They pursue the source of sovereignty further than he is willing to accompany them, and maintain, that it is the Supreme Being, who confers immediately the supreme power on princes, without the intervention or concurrence of man.
56. Puff. 655. b. 7. c. 3, s. 1.
This doctrine, in some countries, and at some periods, has been carried, and is still carried, to a very extravagant height, and has been supported and propagated, and still is supported and propagated, with uncommon zeal. It has been, and still is, a favourite at courts; and has been, and still is, treated with every appearance of profound respect by courtiers, and, in too many instances, by philosophers and by statesmen, who have imitated, and still imitate courtiers in their practice of the slavish art. In the reign of James the second, "the immediate emanation of divine authority" was introduced on every occasion, and ingrafted, often with the strangest impropriety, on every subject. Even in the present century, a book has been burnt by the hangman, because its author maintained, "that God is pot the immediate cause of sovereignty."57
It cannot escape observation, that, in one particular, those who carry this doctrine the furthest, seem to challenge, with some success, the palm of consistency from those, who refuse to accompany them. Both entertain the same sentiments ― and they are certainly overcharged ones ― concerning sovereignty and superiority. Thus far they march together. But here, one division halt. The other proceed, and, looking back on those behind them, demand, why, having gone so far, they refuse to accomplish the journey. They insist, that all human causes are inadequate to the production of that superiority or sovereignty, about the august and sacred character of which they are both agreed. They say, that neither particular men, nor a multitude of men, are themselves possessed of this sovereignty or superiority; and that, therefore, they cannot confer it on the prince.
57. Puff. 656. note to b. 7. c. 3. s. 3.
The consequence is, that, as this superiority is admitted to exist, and as it cannot be conferred by men, it must derive its origin from a higher source.
It is in this manner that Domat reasons concerning the origin of sovereignty and government. "As there is none but God alone who is the natural sovereign of man; so it is likewise from him that they who govern derive all their power and authority. It is one of the ceremonies in the coronation of the kings of France, for them to take the sword from the altar; thereby to denote, that it is immediately from the hand of God that they derive the sovereign power, of which the sword is the principal emblem."58
In the same train of sentiment, Bishop Taylor59 observes, "that the legislative or supreme power is not the servant of the people, but the minister, the trustee, and the representative of God: that all just human power is given from above, not from beneath; from God, not from the people."
Indeed, on the principle of superiority, Caligula's reasoning was concise and conclusive. "If I am only a man, my subjects are something less: if they are men, I am something more."60
58. 2. Domat 298, 299.
59. Rule of Conscience 429.
60. Rous. Or. Com 6.
The answer to the foregoing reasoning appears to me to be more ingenious than solid, and to be productive of amusement, rather than of conviction. I shall deliver it from Burlamaqui, who, on this subject, has followed the opinions of Puffendorff. "This argument," says he, "proves nothing. It is true, that neither each member of the society, nor the whole multitude collected, are formally invested with the supreme authority; but it is sufficient that they possess it virtually; that is, that they have within themselves all that is necessary to enable them, by the concurrence of their free will and consent, to produce it in the sovereign. Since every individual has a natural right of disposing of his own natural freedom, according as he thinks proper; why should he not have a power of transferring to another, that right which he has of directing himself? Now is it not manifest, that, if all the members of the society agree to transfer this right to one of their fellow members, this cession will be the nearest and immediate cause of sovereignty? It is, therefore, evident, that there are, in each individual, the seeds, as it were, of the supreme power. The case is here very near the same, as in that of several voices collected together, which, by their union, produce a harmony, that was not to be found separately in each."61
The metaphors from vegetation and musick may illustrate and please; but they cannot prove nor convince. The notion of virtual sovereignty is as unsatisfactory to me, on this occasion, as that of virtual representation has been, on many others. Indeed, I see but little difference between a claim to derive from another that, which he is willing to give, but of which he is not possessed, and a claim to derive from him that, which he possesses, but which he has not given, and will not give.
61. 2. Burl. 41, 42.
Besides; let me repeat the questions, which I formerly put. ― Have these degrading steps been always taken? must they be always taken, in every state, where law is known or felt? For let it not be forgotten, that superiority is introduced as a necessary part of the definition of law.
I will not attempt to paint the hideous consequences that have been drawn, nor the still more hideous practices that have claimed impunity, indulgence, and even sanction, from the pretended principle of the divine right of princes. Absolute, unlimited, and indefeasible power, nonresistance, passive obedience, tyranny, slavery, and misery walk in its train.
On this subject ― its importance cannot be overrated ― let us receive instruction from a well informed and a well experienced master ― from one, who, probably, in some periods of his life, had felt what he so feelingly describes ― from one, who had been bred to the trade of a prince, and who had been perfectly initiated in all the mysteries of the profession ― from the late Frederick of Prussia.
"If my reflections," says he, "shall be fortunate enough to reach the ears of some princes, they will find among them certain truths, which they never would have heard from the lips of their courtiers and flatterers. Perhaps they will be struck with astonishment, to see such truths placed, by their side, on the throne. But it is time, that, at last, they should learn, that their false principles are the most empoisoned source ― la source la plus empoisonée ― of the calamities of Europe.
"Here is the errour of the greatest part of princes. They believe that God has expressly, and from a particular attention to their grandeur, their happiness, and their pride, formed their subjects for no other purpose, than to be the ministers and instruments of their unbridled passions. As the principle, from which they set out, is false; the consequences cannot be otherwise than infinitely pernicious. Hence the unregulated passion for false glory ― hence the inflamed desire of conquesthence the oppressions laid upon the people ― hence the indolence and dissipation of princes ― hence their ambition, their injustice, their inhumanity, their tyranny ― hence, in short, all those vices, which degrade the nature of man.
"If they would disrobe themselves of these erroneous opinions; if they would ascend to the true origin of their appointment; they would see, that their elevation and rank, of which they are so jealous, are, indeed, nothing else than the work of the people; they would see, that the myriads of men, placed under their care, have not made themselves the slaves of one single man, with a view to render him more powerful and more formidable; have not submitted themselves to a fellow citizen, in order to become the sport of his fancies, and the martyrs of his caprice; but have chosen, from among themselves, the man, whom they believed to be the most just, that he might govern them; the best, that he might supply the place of a father; the most humane, that he might compassionate and relieve their misfortunes; the most valiant, that he might defend them against their enemies; the most wise, that he might not engage them inconsiderately in ruinous and destructive wars; in one word, the man the most proper to represent the body of the state, and in whom the sovereign power might become a bulwark to justice and to the laws, and not an engine, by the force of which tyranny might be exercised, and crimes might be committed with impunity.
"This principle being once established, princes would avoid the two rocks, which, in all ages, have produced the ruin of empires, and distraction in the political world ― ungoverned ambition, and a listless inattention to affairs."62 " They would often reflect that they are men, as well as the least of their subjects ― that if they are the first judges, the first generals, the first financiers, the first ministers of society; they are so, for the purpose of fulfilling the duties, which those names import. They will reflect, that they are only the first servants of the state, bound to act with the same integrity, the same caution, and the same entire disinterestedness, as if, at every moment, they were to render an account of their administration to the citizens."63
I will not charge to the authors, whose opinions I have examined, all the consequences that have been drawn, practically as well as theoretically, from their principles. From their principles, however, admitted by themselves without due caution and scrutiny, those consequences have been drawn by others, and drawn too accurately and too successfully for the peace, liberty, and happiness of men.
62. K. Prus. works. v, 6. p. 48.50.
63. Id. p. 83. 84.
After all, I am much inclined, for the honour of human nature, to believe, that all this doctrine concerning the divine right of kings was, at first, encouraged and cherished by many, from motives, mistaken certainly, but pardonable, and even laudable; and that it was intended not so much to introduce the tyranny of princes, as to form a barrier against the tyranny of priests.
One of them, at the head of a numerous, a formidable, and a well disciplined phalanx, claimed to be the Almighty's vicegerent upon earth; claimed the power of deposing kings, disposing crowns, releasing subjects from their allegiance, and overruling the whole transactions of the christian world. Superstition and ignorance dreaded, but could not oppose, the presumptuous claim. The Pope had obtained, what Archimedes wanted, another world, on which he placed his ecclesiastical machinery; and it was no wonder that he moved this according to his will and pleasure. Princes and potentates, states and kingdoms were prostrate before him. Every thing human was obliged to bend under the incumbent pressure of divine control.
It is not improbable, that, in this disagreeable predicament, the divine right of kings was considered as the only principle, which could be opposed to the claims of the papal throne; and as the only means, which could preserve the civil, from being swallowed by the ecclesiastical powers.
This conjecture receives a degree of probability from a fact, which is mentioned in the history of France.
In a general assembly of the states of the kingdom, it was proposed to canonize this position ― "that kings derive their authority immediately from God." That such a proposition was made in an assembly of the states, the most popular body known in the kingdom, will, no doubt, occasion surprise. This surprise will be in. creased, when it is mentioned, that the proposition was patronized by the most popular part of that assembly: it was the third estate, which wished to pass it into a law. But every thing is naturally and easily accounted for, when it is mentioned further, that the principal object, which the third estate had in view by this measure, was to secure the sovereign authority from the detestable maxims of those, who made it depend upon the pope, by giving him a power of absolving subjects from their oath of allegiance, and authorizing those who assassinated their princes as hereticks.64
The proposal did not pass into a law; because, among other reasons, the question was thought proper for the determination of the schools. But this much may safely be inferred, that what was thought proper by the third estate to be passed into a law, would be generally received through the kingdom, as popular and wholesome doctrine.
I confess myself pleased with indulging the conjecture I have mentioned.
64. Puff 656. n.
When I entered upon the disquisition of the doctrine of a superiour as necessary to the very definition of law; I said, that, if I was not mistaken, this notion of superiority contained the germ of the divine right of princes to rule, and of the corresponding obligation on the people implicitly to obey. It may now be seen whether or not I have been mistaken; and, if I have not been mistaken, it appears, how important it is, carefully and patiently to examine a first principle; to trace it, with attention, to its highest origin; and to pursue it, with perseverance, to its most remote consequences. I have observed this conduct with regard to the principle in question. The result, I think, has been, that, as to human laws, the notion of a superiour is a notion unnecessary, unfounded, and dangerous; a notion inconsistent with the genuine system of human authority.
Now that the will of a superiour is discarded, as an improper principle of obligation in human laws, it is natural to ask ― What principle shall be introduced in its place? In its place I introduce ― the consent of those whose obedience the law requires. This I conceive to be the true origin of the obligation of human laws. This principle I shall view on all its sides; I shall examine it historically and legally; I shall consider it as a question of theory, and as a question of fact.
Let us ascend to the first ages of societies. Customs, for a long time, were the only laws known among them. The Lycians65 had no written laws; they were governed entirely by customs. Among the ancient Britons also, no written laws were known: they were ruled by the traditionary ― and if traditionary, probably, the customary ― laws of the Druids.
65. 1. Gog. Or. Laws. 3.
Now custom is, of itself, intrinsick evidence of consent. How was a custom introduced? By voluntary adoption. How did it become general? By the instances of voluntary adoption being increased. How did it become lasting? By voluntary and satisfactory experience, which ratified and confirmed what voluntary adoption had introduced. In the introduction, in the extension, in the continuance of customary law, we find the operations of consent universally predominant.
"Customs," in the striking and picturesque language of my Lord Bacon, "are laws written in living tables."66 In regulations of justice and of government, they have been more effectual than the best written laws. The Romans, in their happy periods of liberty, paid great regard to customary law. Let me mention, in one word, every thing that can enforce my sentiments: the common law of England is a customary law.
Among the earliest, among the freest, among the most improved nations of the world, we find a species of law prevailing, which carried, in its bosom, internal evidence of consent. History, therefore, bears a strong and a uniform testimony in favour of this species of law.
Let us consult the sentiments67 as well as the history of the ancients. I find a charge against them on this subject ― "that they were not accurate enough in their expressions; because they frequently applied to laws the name of common agreements."68 This, it is acknowledged, they do almost every where in their writings. He, however, who accuses the ancient writers of inaccuracy in expression, ought himself to be consummately accurate. "Let those teach others, who themselves excel." Whether the Baron Puffendorff was entitled to be a teacher in this particular, we stay not to examine. It is of more consequence to attend to the ground of his accusation.
66. 4. Ld. Bac. 5.
67. Mens, et animus, et consilium, et sententia civitatis posita est in legibus. Ut corpora nostra sine mente; sic civitas sine lege, suis partibus, ut nervis, ac sanguine, et membris, uti non potest. Legum ministri, magistratus; legum interpretes, judices: legum denique idcirco omnes servi sumus, ut liberi esse possimus. Cicero pro Cluen. c. 53.
68. Puff. 59. b. 1. c. 6. s. 7.
One reason, why he urges their expressions to be inaccurate, is, that "neither the divine positive laws, nor the laws of nature had their rise from the agreement of men." All this is, at once, admitted; but the present disquisition relates only to laws that are human. What is said with regard to them? With regard to them it is said, that "the Grecians, as in their other politick speeches, so in this too, had an eye to their own democratical governments; in which, because the laws were made upon the proposal of the magistrate, with the knowledge, and by the command, of the people, and so, as it were, in the way of bargain and stipulation; they gave them the name of covenants and agreements."
I am now unsolicitous to repel the accusation: it seems, it was conceived to arise from a reference, by the ancients, to their democratical governments. Let them be called covenants, or agreements, or bargains, or stipulations, or any thing similar to any of those, still I am satisfied; for still every thing mentioned, and every thing similar to every thing mentioned, imports consent. Here history and law combine their evidence in support of consent.
Law has been denominated "a general convention of the citizens:" such is the definition of it in the Digest: for the Roman law was not, in every age of Rome, the law of slavery. A similar mode of expression has been long used in England. Magna Charta was made "by the common assent of all the realm."69
Let us listen to the judicious and excellent Hooker what he says always conveys instruction. "The lawful power of making laws to command whole politick societies of men, belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever upon earth, to exercise the same of himself, and not either by express commission immediately and personally received from God, or else by authority derived, at the first, from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not, therefore, which publick approbation hath not made so."70 "Laws human, of what kind soever, are available by consent."71
My Lord Shaftesbury, who formed his taste and judgment upon ancient writers and ancient opinions, delivers it as his sentiment, "That no people in a civil state can possibly be free, when they are otherwise governed, than by such laws as they themselves have constituted, or to which they have freely given consent."72
This subject will receive peculiar illustration and importance, when we come to consider the description and characters of municipal law. I will not anticipate here what will be introduced there with much greater propriety and force.
69. Sulliv. Pref. 18.
70. Hooker. b. 1. s. 10. p. 19.
71. Id. p. 20.
72. 3. Shaft. 312.
Of law there are different kinds. All, however, may be arranged in two different classes. 1. Divine. 2. Human laws. The descriptive epithets employed denote, that the former have God, the latter, man, for their author.
The laws of God may be divided into the following species.
I. That law, the book of which we are neither able nor worthy to open. Of this law, the author and observer is God. He is a law to himself, as well as to all created things. This law we may name the "law eternal."
II. That law, which is made for angels and the spirits of the just made perfect. This may be called the "law celestial." This law, and the glorious state for which it is adapted, we see, at present, but darkly and as through a glass: but hereafter we shall see even as we are seen; and shall know even as we are known. From the wisdom and the goodness of the adorable Author and Preserver of the universe, we are justified in concluding, that the celestial and perfect state is governed, as all other things are, by his established laws. What those laws are, it is not yet given us to know; but on one truth we may rely with sure and certain confidence ― those laws are wise and good. For another truth we have infallible authority ― those laws are strictly obeyed: "In heaven his will is done."
III. That law, by which the irrational and inanimate parts of the creation are governed. The great Creator of all things has established general and fixed rules, according to which all the phenomena of the material universe are produced and regulated. These rules are usually denominated laws of nature. The science, which has those laws for its object, is distinguished by the name of natural philosophy. It is sometimes called, the philosophy of body. Of this science, there are numerous branches.
IV. That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us. This law has undergone several subdivisions, and has been known by distinct appellations, according to the different ways in which it has been promulgated, and the different objects which it respects. As promulgated by reason and the moral sense, it has been called natural; as promulgated by the holy scriptures, it has been called revealed law.
As addressed to men, it has been denominated the law of nature; as addressed to political societies, it has beep denominated the law of nations.
But it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source: it is the law of God.
Nature, or, to speak more properly, the Author of nature, has done much for us; but it is his gracious appointment and will, that we should also do much for ourselves. What we do, indeed, must be founded on what he has done; and the deficiencies of our laws must be supplied by the perfections of his. Human law must rest its authority, ultimately, upon the authority of that law, which is divine.
Of that law, the following are maxims ― that no injury should be done ― that a lawful engagement, voluntarily made, should be faithfully fulfilled. We now see the deep and the solid foundations of human law.
It is of two species. 1. That which a political society makes for itself. This is municipal law. 2. That which two or more political societies make for themselves. This is the voluntary law of nations.
In all these species of law ― the law eternal ― the law celestial ― the law natural ― the divine law, as it respects men and nations ― the human law, as it also respects men and nations ― man is deeply and intimately concerned. Of all these species of law, therefore, the knowledge must be most important to man.
Those parts of natural philosophy, which more immediately relate to the human body, are appropriated to the profession of physick.
The law eternal, the law celestial, and the law divine, as they are disclosed by that revelation, which has brought life and immortality to light, are the more peculiar objects of the profession of divinity.
The law of nature, the law of nations, and the municipal law form the objects of the profession of law.
From this short, but plain and, I hope, just statement of things, we perceive a principle of connexion between all the learned professions; but especially between the two last mentioned. Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other. The divine law, as discovered by reason and the moral sense, forms an essential part of both.
From this statement of things, we also perceive how important and dignified the profession of the law is, when traced to its sources, and viewed in its just extent.
The immediate objects of our attention are, the law of nature, the law of nations, and the municipal law of the United States, and of the several states which compose the Union. It will not be forgotten, that the constitutions of the United States, and of the individual states, form a capital part of their municipal law. On the two first of these three great heads, I shall be very general. On the last, especially on those parts of it, which comprehend the constitutions and publick law, I shall be more particular and minute.
CHAPTER III.
OF THE LAW OF NATURE.
IN every period of our existence, in every situation, in which we can be placed, much is to be known, much is to be done, much is to be enjoyed. But all that is to be known, all that is to be done, all that is to he enjoyed, depends upon the proper exertion and direction of our numerous powers. In this immense ocean of intelligence and action, are we left without a compass and without a chart? Is there no pole star, by which we may regulate our course? Has the all-gracious and all-wise Author of our existence formed us for such great and such good ends; and has he left us without a conductor to lead us in the way, by which those ends may be attained? Has he made us capable of observing a rule, and has he furnished us with no rule, which we ought to observe? Let us examine these questions ― for they are important ones ― with patience and with attention. Our labours will, in all probability, be amply repaid. We shall probably find that, to direct the more important parts of our conduct, the bountiful Governour of the universe has been graciously pleased to provide us with a law; and that, to direct the less important parts of it, he has made us capable of providing a law for ourselves.
That our Creator has a supreme right to prescribe a law for our conduct, and that we are under the most perfect obligation to obey that law, are truths established on the clearest and most solid principles.
In the course of our remarks on that part of Sir William Blackstone's definition of law, which includes the idea of a superiour as essential to it, we remarked, with particular care, that it was only with regard to human laws that we controverted the justness or propriety of that idea. It was incumbent on us to mark this distinction particularly; for with regard to laws which are divine, they truly come from a superiour ― from Him who is supreme.
Between beings, who, in their nature, powers, and situation, are so perfectly equal, that nothing can be ascribed to one, which is not applicable to the other, there can be neither superiority nor dependence. With regard to such beings, no reason can be assigned, why any one should assume authority over others, which may not, with equal propriety, be assigned, why each of those others should assume authority over that one. To constitute superiority and dependence, there must be an essential difference of qualities, on which those relations may be founded.73
73. 1. Burl. 82.
Some allege, that the sole superiority of strength, or, as they express it, an irresistible power, is the true foundation of the right of prescribing laws. "This superiority of power gives," say they, "a right of reigning, by the impossibility, in which it places others, of resisting him, who has so great an advantage over them."74
Others derive the right of prescribing laws and imposing obligations from superiour excellence of nature. "This," say they, "not only renders a being independent of those, who are of a nature inferiour to it; but leads us to believe, that the latter were made for the sake of the former." For a proof of this, they appeal to the constitution of man. "Here," they tell us, "the soul governs, as being the noblest part." "On the same foundation," they add, "the empire of man over the brute creation is built."75
Others, again, say, that "properly speaking, there is only one general source of superiority and obligation. God is our creator: in him we live, and move, and have our being: from him we have received our intellectual and our moral powers: he, as master of his own work, can prescribe to it whatever rules to him shall seem meet. Hence our dependence on our Creator: hence his absolute power over us. This is the true source of all authority."76
74. 1. Burl. 83.
75. Id. 83.
76. Id. 83. 87.
With regard to the first hypothesis, it is totally insufficient; nay, it is absolutely false. Because I cannot resist, am I obliged to obey? Because another is possessed of superiour force, am I bound to acknowledge his will as the rule of my conduct? Every obligation supposes motives that influence the conscience and determine the will, so that we should think it wrong not to obey, even if resistance was in our power. But a person, who alleges only the law of the strongest, proposes no motive to influence the conscience, or to determine the will. Superiour force may reside with predominant malevolence. Has force, exerted for the purposes of malevolence, a right to command? Can it impose an obligation to obey? No. Resistance to such force is a right; and, if resistance can prove effectual, it is a duty also. On some occasions, all our efforts may, indeed, be useless; and an attempt to resist would frustrate its own aim but, on such occasions, the exercise of resistance only is suspended; the right of resistance is not extinguished we may continue, for a time, under a constraint; but we come not under an obligation: we may suffer all the external effects of superiour force; but we feel not the internal influence of superiour authority?77
77. 1. Burl. 85. 86.
The second hypothesis has in it something plausible; but, on examination, it will not be found to be accurate. Wherever a being of superiour excellence is found, his excellence, as well as every other truth, ought, on proper occasions, to be acknowledged; we will go farther; it ought, as every thing excellent ought, to be esteemed. But must we go farther still? Is obedience the necessary consequence of honest acknowledgment and just esteem? Here we must make a pause: we must make some inquiries before we go forward. In what manner is this being of superiour excellence connected with us? What are his dispositions with regard to us? By what effects, if by any, will his superiour excellence be displayed? Will it be exerted for our happiness; or, as to us, will it not be exerted at all? We acknowledge ― we esteem excellence; but till these questions are answered, we feel not ourselves under an obligation to obey it.78 If the opinion of Epicurus concerning his divinities ― that they were absolutely indifferent to the happiness and interests of men ― was admitted for a moment; 79 the inference would unquestionably be ― that they were not entitled to human obedience.
The third hypothesis contains a solemn truth, which ought to be examined with reverence and awe. It resolves the supreme right of prescribing laws for our conduct, and our indispensable duty of obeying those laws, into the omnipotence of the Divinity. This omnipotence let us humbly adore. Were we to suppose ― but the supposition cannot be made ― that infinite goodness could be disjoined from almighty power ― but we cannot ― must not proceed to the inference. No, it never can be drawn; for from almighty power infinite goodness can never be disjoined.
Let us join, in our weak conceptions, what are inseparable in their incomprehensible Archetype ― infinite power ― infinite wisdom ― infinite goodness; and then we shall see, in its resplendent glory, the supreme, right to rule: we shall feel the conscious sense of the perfect obligation to obey.
78. 1. Burl. 86. 87.
79. Epicurus re tollit, oratione relinquit deos. Deinde, si maxime talis est deus, ut nulla gratia, nulla heminum caritate teneatur: valeat. Quid enim dicam, propitius sit? Cic. de Nat. Deo 1. 1. c. 44.
His infinite power enforces his laws, and carries then into full and effectual execution. His infinite wisdom knows and chooses the fittest means for accomplishing the ends which he proposes. His infinite goodness proposes such ends only as promote our felicity. By his power, he is able to remove whatever may possibly injure us, and to provide whatever is conducive to our happiness. By his wisdom, he knows our nature, our faculties, and our interests: he cannot be mistaken in the designs, which he proposes, nor in the means, which he employs to accomplish them. By his goodness, he proposes our happiness: and to that end directs the operations of his power and wisdom. Indeed, to his goodness alone we may trace the principle of his laws. Being infinitely and eternally happy in himself, his goodness alone could move him to create us, and give us the means of happiness. The same principle, that moved his creating, moves his governing power. The rule of his government we shall find to be reduced to this one paternal command ― Let man pursue his own perfection and happiness.
What an enrapturing view of the moral government of the universe! Over all, goodness infinite reigns, guided by unerring wisdom, and supported by almighty power. What an instructive lesson to those who think, and are encouraged by their flatterers to think, that a portion of divine right is communicated to their rule. If this really was the case; their power ought to be subservient to their goodness, and their goodness should be employed in promoting the happiness of those, who are entrusted to their care. But princes, and the flatterers of princes, are guilty, in two respects, of the grossest errour and presumption. They claim to govern by divine institution and right. The principles of their government are repugnant to the principles of that government, which is divine. The principle of the divine government is goodness: they plume themselves with the gaudy insignia of power.
Well might nature's poet say ―
― Could great men thunder,
As Jove himself does, Jove would ne'er be quiet;
For every pelting, petty officer
Would use his heaven for thunder;
Nothing but thunder. Merciful heaven!
Thou rather with thy sharp and sulphurous bolt
Split'st the unwedgeable and gnarled oak,
Than the soft myrtle: O, but man, proud man,
Dressed in a little brief authority,
Most ignorant of what he's most assured,
His glassy substance; like an angry ape,
Plays such fantastick tricks before high heaven,
As make tine angels weep.
Shak. Meas. for Meas. Act II.
Where a supreme right to give laws exists, on one side, and a perfect obligation to obey them exists, on the other side; this relation, of itself, suggests the probability that laws will be made.
When we view the inanimate and irrational creation around and above us, and contemplate the beautiful order observed in all its motions and appearances; is not the supposition unnatural and improbable ― that the rational and moral world should be abandoned to the frolicks of chance, or to the ravage of disorder? What would be the fate of man and of society, was every one at full liberty to do as he listed, without any fixed rule or principle of conduct, without a helm to steer him ― a sport of the fierce gusts of passion, and the fluctuating billows of caprice?
To be without law is not agreeable to our nature; because, if we were without law, we should find many of our talents and powers hanging upon us like useless incumbrances. Why should we be illuminated by reason, were we only made to obey the impulse of irrational instinct? Why should we have the power of deliberating, and of balancing our determinations, if we were made to yield implicitly and unavoidably to the influence of the first impressions? Of what service to us would reflection be, if, after reflection, we were to be carried away irresistibly by the force of blind and impetuous appetites?
Without laws, what would be the state of society? The more ingenious and artful the twolegged animal, man, is, the more dangerous he would become to his equals: his ingenuity would degenerate into cunning; and his art would be employed for the purposes of malice. He would be deprived of all the benefits and pleasures of peaceful and social life: he would become a prey to all the distractions of licentiousness and war.
Is it probable ― we repeat the question ― is it probable that the Creator, infinitely wise and good, would leave his moral world in this chaos and disorder?
If we enter into ourselves, and view with attention what passes in our own breasts, we shall find, that what, at first, appeared probable, is proved, on closer examination, to be certain; we shall find, that God has not left himself without a witness, nor us without a guide.
We have already observed, that, concerning the nature and cause of obligation, many different opinions have been entertained, and much ingenious disputation has been held, by philosophers and writers on jurisprudence. It will not be improper to take a summary view of those opinions.
Some philosophers maintain, that all obligation arises from the relations of things; 80 from a certain proportion or disproportion, a certain fitness or unfitness, between objects and actions, which give a beauty to some, and a deformity to others. They say, that the rules of morality are founded on the nature of things; and are agreeable to the order necessary for the beauty of the universe.81
80. 1. Ruth. 9.
81. Gro. 10.
Others allege, that every rule whatever of human actions carries with it a moral necessity of conforming to it; and consequently produces a sort of obligation. Every rule, say they, implies a design, and the will of attaining a certain end. He, therefore, who proposes a particular end, and knows the rule by which alone he can accomplish it, finds himself under a moral necessity of observing that rule. If he did not observe it, he would act a contradictory part; he would propose the end, and neglect the only means, by which he could obtain it. There is a reasonable necessity, therefore, to prefer one manner of acting before another; and every reasonable man finds himself engaged to this, and prevented from acting in a contrary manner. In other words, he is obliged: for obligation is nothing more than a restriction of liberty produced by reason. Reason, then, independent of law, is sufficient to impose some obligation on man, and to establish a system of morality and duty.82
But, according to others, the idea of obligation necessarily implies a being, who obliges, and must be distinct from him, who is obliged. If the person, on whom the obligation is imposed, is the same as he who imposes it; he can disengage himself from it whenever he pleases: or, rather, there is no obligation. Obligation and duty depend on the intervention of a superiour, whose will is manifested by law. If we abstract from all law, and consequently from a legislator; we shall have no such thing as right, obligation, duty, or morality.83
Others, again, think it necessary to join the last two principles together, in order to render the obligation perfect.84 Reason, say they, is the first rule of man, the first principle of morality, and the immediate cause of all primitive obligation. But man being necessarily dependent on his Creator, who has formed him with wisdom and design, and who, in creating him, has proposed some particular ends; the will of God is another rule of human actions, another principle of morality, obligation, and duty. On this distinction, the kinds of obligation, external and internal, are founded. These two principles must be united, in order to form a complete system of morality, really founded on the nature and state of man. As a rational being, he is subject to reason: as a creature of God, to his supreme will. Thus, reason and the divine will are perfectly reconciled, are naturally connected, and are strengthened by their junction.85
82. Hein. 63. 1. Burl. 207, 210, 212. Puff. 17. b. 1. c. 2. s. 6.
83. 1. Burl. 210. 212, 202. Hein.10.
84. 1. Ruth. 9.
The cause of obligation is laid, by some philosophers, in utility.86 Actions, they tell us, are to be estimated by their tendency to promote happiness. Whatever is expedient, is right. It is the utility, alone, of any moral rule, which constitutes its obligation.
Congenial with this principle, is another, which has received the sanction of some writers ― that sociability, or the care of maintaining society properly, is the fountain of obligation and right: for to every right, there must be a corresponding obligation. From this principle the inference is drawn, that every one is born, not for himself alone, but for the whole human kind.87
Further ― many philosophers derive our obligation to observe the law of nature from instinctive affections, or an innate moral sense.88 This is the sense, they tell us, by which we perceive the qualities of right and wrong, and the other moral qualities in actions.
85. 1. Burl. 214. 216, 219, 220.
86. 1. Paley 82. Hein. 51.
87. Hein. 50. Gro. Prel. 17. Puff. 139. b. 2. c. 3. s. 15.
88. 1. Ruth. 9.
With regard, then, both to the meaning and the cause of obligation, much diversity of sentiment, much ambiguity, and much obscurity, have, it appears, prevailed. It is a subject of inquiry, however, that well deserves to be investigated, explained, illustrated, and placed in its native splendour and dignity. In order to do this, it will be proper to ascertain the precise state of the question before us. It is this ― what is the efficient cause of moral obligation ― of the eminent distinction between right and wrong? This has been often and injudiciously blended with another question, connected indeed with it, but from which it ought to be preserved separate and distinct. That other question is ― how shall we, in particular instances, learn the dictates of our duty, and make, with accuracy, the eminent distinction, which we have just now mentioned? The first question points to the principle of obligation: the second points to the means by which our obligation to perform a specified action, or a series of specified actions, maybe deduced. The first has been called by philosophers ― principium essendi ― the principle of existence; the principle which constitutes obligation. The second has been called by them ― principium cognoscendi ― the principle of knowing it; the principle by which it may be proved or perceived. In a commonwealth, the distinction between these two questions is familiar and easy. If the question is put ― what is the efficient cause of the obligation upon the citizens to obey the laws of the state? ― the answer is reads ― the will of those, by whose authority the laws are made. If the other question is put how shall we, in a particular instance, or in a series of particular instances, ascertain the laws, which the citizens ought to obey? ― reference is immediately made to the code of laws.
Having thus stated the question ― what is the efficient cause of moral obligation? ― I give it this answer ― the will of God. This is the supreme law.89 His just and full right of, imposing laws, and our duty in obeying then, are the sources of our moral obligations. If I am asked ― why do you obey the will of God? I answer ― because it is my duty so to do. If I am asked again ― how do you know this to be your duty? I answer again ― because I am told so by my moral sense or conscience. If I am asked a third time ― how do you know that you ought to do that, of which your conscience enjoins the performance? I can only say, I feel that such is my duty. Here investigation must stop; reasoning can go no farther. The science of morals, as well as other sciences, is founded on truths, that cannot be discovered or proved by reasoning. Reason is confined to the investigation of unknown truths by the means of such as are known. We cannot, therefore, begin to reason, till we are furnished, otherwise than by reason, with some truths, on which we can found our arguments. Even in mathematicks, we must be provided with axioms perceived intuitively to be true, before our demonstrations can commence. Morality, like mathematicks, has its intuitive truths, without which we cannot make a single step in our reasonings upon the subject.90 Such an intuitive truth is that, with which we just now closed our investigation. If a person was not possessed of the feeling before mentioned; it would not be in the power of arguments, to give him any conception of the distinction between right and wrong. These terms would be to him equally unintelligible, as the term colour to one who was born and has continued blind. But that there is, in human nature, such a moral principle, has been felt and acknowledged in all ages and nations.
89. Principem legem illam et ultimam, mentem esse dicebant, omnia ratiene aut cogentis, aut vetantis dei. Cic. de leg. l. 2. c. 4.
90. Quæ est gens, aut quod genus hominum, quod non habeat sine doctrina anticipationem quandani, id est, anticeptam animo rei quandam informationem, sine qua nec intelligi quidquam, nec quæri, nec disputari potest. Cic. de nat. Deor. l. 1. c. 16.
Now that we have stated and answered the first question; let us proceed to the consideration of the second ― how shall we, in particular instances, learn the dictates of our duty, and make, with accuracy, the proper distinction between right and wrong; in other words, how shall we, in particular cases, discover the will of God? We discover it by our conscience, by our reason, and by the Holy Scriptures. The law of nature and the law of revelation are both divine: they flow, though in different channels, from the same adorable source. It is, indeed, preposterous to separate them from each other. The object of both is ― to discover the will of God ― and both are necessary for the accomplishment of that end.
I. The power of moral perception is, indeed, a most important part of our constitution. It is an original power ― a power of its own kind; and totally distinct from the ideas of utility and agreeableness. By that power, we have conceptions of merit and demerit, of duty and moral obligation. By that power, we perceive some things in human conduct to be right, and others to be wrong. We have the same reason to rely on the dictates of this faculty, as upon the determinations of our senses, or of our other natural powers. When an action is represented to us, flowing from love, humanity, gratitude, an ultimate desire of the good of others; though it happened in a country far distant, or in an age long past, we admire the lovely exhibition, and praise its author. The contrary conduct, when represented to us, raises our abhorrence and aversion. But whence this secret chain betwixt each person and mankind? If there is no moral sense, which makes benevolence appear beautiful; if all approbation be from the interest of the approver;
"What's Hecuba to us, or we to Hecuba?"91
91. Hamlet.
The mind, which reflects on itself, and is a spectator of other minds, sees and feels the soft and the harsh, the agreeable and the disagreeable, the foul and the fair, the harmonious and the dissonant, as really and truly in the affections and actions, as in any musical numbers, or the outward forms or representations of sensible things. It cannot withhold its approbation or aversion in what relates to the former, any more than in what relates to the latter, of those subjects. To deny the sense of a sublime and beautiful and of their contraries in actions and things, will appear an affectation merely to one who duly considers and traces the subject. Even he who indulges this affectation cannot avoid the discovery of those very sentiments, which he pretends not to feel. A Lucretius or a Hobbes cannot discard the sentiments of praise and admiration respecting some moral forms, nor the sentiments of censure and detestation concerning others. Has a man gratitude, or resentment, or pride, or shame? If he has and avows it; he must have and acknowledge a sense of something benevolent, of something unjust, of something worthy, and of something mean. Thus, so long as we find men pleased or angry, proud or ashamed; we may appeal to the reality of the moral sense. A right and a wrong, an honourable and a dishonourable is plainly conceived. About these there may be mistakes; but this destroys not the inference, that the things are, and are universally acknowledged ― that they are of nature's impression, and by no art can be obliterated.
This sense or apprehension of right and wrong appears early, and exists in different degrees. The qualities of love, gratitude, sympathy unfold themselves, in the first stages of life, and the approbation of those qualities accompanies the first dawn of reflection. Young people, who think the least about the distant influences of actions, are, more than others, moved with moral forms. Hence that strong inclination in children to hear such stories as paint the characters and fortunes of men. Hence that joy in the prosperity of the kind and faithful, and that sorrow upon the success of the treacherous and cruel, with which we often see infant minds strongly agitated.
There is a natural beauty in figures; and is there not a beauty as natural in actions? When the eye opens upon forms, and the ear to sounds; the beautiful is seen, and harmony is heard and acknowledged. When actions are viewed and affections are discerned, the inward eye distinguishes the beautiful, the amiable, the admirable, from the despicable, the odious, and the deformed. How is it possible not to own, that as these distinctions have their foundation in nature, so this power of discerning them is natural also?
The universality of an opinion or sentiment may be evinced by the structure of languages. Languages were not invented by philosophers, to countenance or support any artificial system. They were contrived by men in general, to express common sentiments and perceptions. The inference is satisfactory, that where all languages make a distinction, there must be a similar distinction in universal opinion or sentiment. For language is the picture of human thoughts; and, from this faithful picture, we may draw certain conclusions concerning the original. How, a universal effect must have a universal cause. No universal cause can, with propriety, be assigned for this universal opinion, except that intuitive perception of things, which is distinguished by the name of common sense.
All languages speak of a beautiful and a deformed, a right and a wrong, an agreeable and disagreeable, a good and ill, in actions, affections, and characters. All languages, therefore, suppose a moral sense, by which those qualities are perceived and distinguished.
The whole circle of the arts of imitation proves the reality of the moral sense. They suppose, in human conduct, a sublimity, a beauty, a greatness, an excellence, independent of advantage or disadvantage, profit or loss. On him, whose heart is indelicate or hard; on him, who has no admiration of what is truly noble; on him, who has no sympathetick sense of what is melting and tender, the highest beauty of the mimick arts must make, indeed, but a very faint and transient impression. If we were void of a relish for moral excellence, how frigid and uninteresting would the finest descriptions of life and manners appear! How indifferent are the finest strains of harmony, to him who has not a musical ear!
The force of the moral sense is diffused through every part of life. The luxury of the table derives its principal charms from some mixture of moral enjoyments, from communicating pleasures, and from sentiments honourable and just as well as elegant ―
"The feast of reason, and the flow of soul."
The chief pleasures of history, and poetry, and eloquence, and musick, and sculpture, and painting are derived from the same source. Beside the pleasures they afford by imitation, they receive a stronger charm from something moral insinuated into the performances. The principal beauties of behaviour, and even of countenance, arise from the indication of affections or qualities morally estimable.
Never was there any of the human species above the condition of an idiot, to whom all actions appeared indifferent. All feel that a certain temper, certain affections, and certain actions produce a sentiment of approbation; and that a sentiment of disapprobation is produced by the contrary temper, affections, and actions.
This power is capable of culture and improvement by habit, and by frequent and extensive exercise. A high sense of moral excellence is approved above all other intellectual talents. This high sense of excellence is accompanied with a strong desire after it, and a keen relish for it. This desire and this relish are approved as the most amiable affections, and the highest virtues.
This moral sense, from its very nature, is intended to regulate and control all our other powers. It governs our passions as well as our actions. Other principles may solicit and allure; but the conscience assumes authority, it must be obeyed. Of this dignity and commanding nature we are immediately conscious, as we are of the power itself. It estimates what it enjoins, not merely as superiour in degree, but as superiour likewise in kind, to what is recommended by our other perceptive powers. Without this controlling faculty, endowed as we are with such a variety of senses and interfering desires, we should appear a fabrick destitute of order but possessed of it, all our powers maybe harmonious and consistent; they may all combine in one uniform and regular direction.
In short; if we had not the faculty of perceiving certain things in conduct to be right, and others to be wrong; and of perceiving our obligation to do what is right, and not to do what is wrong; we should not be moral and accountable beings.
If we be, as, I hope, I have shown we are, endowed with this faculty; there must be some things, which are immediately discerned by it to be right, and others to be wrong. There must, consequently, be in morals, as in other sciences, first principles, which derive not their evidence from any antecedent principles, but which may be said to be intuitively discerned.
Moral truths may be divided into two classes; such as are selfevident, and such as, from the selfevident ones, are deduced by reasoning. If the first be not discerned without reasoning, reasoning can never discern the last. The cases that require reasoning are few, compared with those that require none; and a man may be very honest and virtuous, who cannot reason, and who knows not what demonstration means.
If the rules of virtue were left to be discovered by reasoning, even by demonstrative reasoning, unhappy would be the condition of the far greater part of men, who have not the means of cultivating the power of reasoning to any high degree. As virtue is the business of all men, the first principles of it are written on their hearts, in characters so legible, that no man can pretend ignorance of them, or of his obligation to practise them. Reason, even with experience, is too often overpowered by passion; to restrain whose impetuosity, nothing less is requisite than the vigorous and commanding principle of duty.
II. The first principles of morals, into which all moral argumentation may be resolved, are discovered in a manner more analogous to the perceptions of sense than to the conclusions of reasoning. In morality, however, as well as in other sciences, reason is usefully introduced, and performs many important services. In many instances she regulates our belief; and in many instances she regulates our conduct. She determines the proper means to any end; and she decides the preference of one end over another. She may exhibit an object to the mind, though the perception which the mind has, when once the object is exhibited, may properly belong to a sense. She may be necessary to ascertain the circumstances and determine the motives to an action; though it be the moral sense that perceives the action to be either virtuous or vicious, after its motive and its circumstances have been discovered. She discerns the tendencies of the several senses, affections, and actions, and the comparative value of objects and gratifications. She judges concerning subordinate ends; but concerning ultimate end she is not employed. These we prosecute by some immediate determination of the mind, which, in the order of action, is prior to all reasoning; for no opinion. or judgment can move to action, where there is not a previous desire of some end. ― This power of comparing the several enjoyments, of which our nature is susceptible, in order to discover which are most important to our happiness, is of the highest consequence and necessity to corroborate our moral faculty, and to preserve our affections in just rank and regular order.
A magistrate knows that it is his duty to promote the good of the commonwealth, which has intrusted him with authority. But whether one particular plan or another particular plan of conduct in office, may best promote the good of the commonwealth, may, in many cases, be doubtful. His conscience or moral sense determines the end, which he ought to pursue; and he has intuitive evidence that his end is good: but the means of attaining this end must be determined by reason. To select and ascertain those means, is often a matter of very considerable difficulty. Doubts may arise; opposite interests may occur; and a preference must be given to one side from a small over-balance, and from very nice views. This is particularly the case in questions with regard to justice. If every single instance of justice, like every single instance of benevolence, were pleasing and useful to society, the case would be more simple, and would be seldom liable to great controversy. But as single instances of justice are often pernicious in their first and immediate tendency; and as the advantage to society results only from the observance of the general rule, and from the concurrence and combination of several persons in the same equitable conduct; the case here becomes more intricate and involved. The various circumstances of society, the various consequences of any practice, the various interests which may be proposed, are all, on many occasions, doubtful, and subject to much discussion and inquiry. The design of municipal law (for let us still, from every direction, open a view to our principal object) the design of municipal law is to fix all the questions which regard justice. A very accurate reason or judgment is often requisite, to give the true determination amidst intricate doubts, arising from obscure or opposite utilities.
Thus, though good and ill, right and wrong are ultimately perceived by the moral sense, yet reason assists its operations, and, in many instances, strengthens and extends its influence. We may argue concerning propriety of conduct: just reasonings on the subject will establish principles for judging of what deserves praise: but, at the same tune, these reasonings must always, in the last resort, appeal to the moral sense.
Farther; reason serves to illustrate, to, prove, to extend, to apply what our moral sense has already suggested to us, concerning just and unjust, proper and improper, right and wrong. A father feels that, paternal tenderness is refined and confirmed, by reflecting how consonant that feeling is to the relation between a parent and his child; how conducive it is to the happiness, not only of a single family, but, in its extension, to that of all mankind. We feel the beauty and excellence of virtue; but this sense is strengthened and improved by the lessons, which reason gives us concerning the foundations, the motives, the relations, the particular and the universal advantages flowing from this virtue, which, at first sight, appeared so beautiful.
Taste is a faculty, common, in some degree, to all men. But study, attention, comparison operate most powerfully towards its refinement. In the same manner, reason contributes to ascertain the exactness, and to discover and correct the mistakes, of the moral sense. A prejudice of education may be misapprehended for a determination of morality. 'Tis reason's province to compare and discriminate.
Reason performs an excellent service to the moral sense in another respect. It considers the relations of actions, and traces them to the remotest consequences. We often see men, with the most honest hearts and most pure intentions, embarrassed and puzzled, when a case, delicate and complicated, comes before them. They feel what is right; they are unshaken in their general principles; but they are unaccustomed to pursue them through their different ramifications, to make the necessary distinctions and exceptions, or to modify them according to the circumstances of time and place. 'Tis the business of reason to discharge this duty; and it will discharge it the better in proportion to the care which has been employed in exercising and improving it.
The existence of the moral sense has been denied by some philosophers of high fame: its authority has been attacked by others: the certainty and uniformity of its decisions have been arraigned by a third class.92 We are told, that, without education, we should have been in a state of perfect indifference as to virtue and vice; that an education, opposite to that which we have received, would have taught us to regard as virtue that which we now dislike as vice, and to despise as vice that which we now esteem as virtue. In support of these observations, it is farther said, that moral sentiment is different in different countries, in different ages, and under different forms of government and religion; in a word, that it is as much the effect of custom, fashion, and artifice, as our taste in dress, furniture, and the modes of conversation. Facts and narratives have been assembled and accumulated, to evince the great diversity and even contrariety that subsists concerning moral opinions. And it has been gravely asked, whether the wild boy, who was caught in the woods of Hanover, would feel a sentiment of disapprobation upon being told of the conduct of a parricide. An investigation of those facts and narratives cannot find a place in these lectures; though the time bestowed on it might be well employed. It may, however, be proper to observe, that it is but candid to consider human nature in her improved, and not in her most rude or depraved forms. "The good experienced man," says Aristotle, "is the last measure of all things."93 To ascertain moral principles, we appeal not to the common sense of savages, but of men in their most perfect state.
92.1. Paley 12-24. Kaims Pr. Eq. 8.
93. 1. Hutch. 237, 121.
Epicurus, as well as some modern advocates of the same philosophy, seem to have taken their estimates of human nature from its meanest and most degrading exhibitions; but the noblest and most respectable philosophers of antiquity have chosen, for a much wiser and better purpose, to view it on the brightest and most advantageous side. "It is impossible," says the incomparable Addison,94 "to read a passage in Plato or Tully, and a thousand other ancient moralists, without being a greater and a better man for it. On the contrary, I could never read some modish modern authors, without being, for some time, out of humour with myself, and at every thing about me. Their business is to depreciate human nature, and consider it under its worst appearances. They give mean interpretation and base motives to the worthiest actions ― in short, they endeavour to make no distinction between man and man, or between the species of men and that of brutes." True it is, that some men and some nations are savage and brutish; but is that a reason why their manners and their practices should be generally and reproachfully charged to the account of human nature? It may, perhaps, be somewhat to our purpose to observe, that in many of these representations, the picture, if compared with the original, will be found to be overcharged. For, in truth, between mankind, considered even in their rudest state, and the mutum et turpe pecus, a very wide difference will be easily discovered. In the most uninformed savages, we find the communes notitiæ, the common notions and practical principles of virtue, though the application of them is often extremely unnatural and absurd. These same savages have in them the seeds of the logician, the man of taste, the orator, the statesman, the man of virtue, and the saint. These seeds are planted in their minds by nature, though, for want of culture and exercise, they lie unnoticed, and are hardly perceived by themselves or by others. Besides, some nations that have been supposed stupid and barbarous by nature, have, upon fuller acquaintance with their history, been found to have been rendered barbarous and depraved by institution. When, by the power of some leading members, erroneous laws are once established, and it has become the interest of subordinate tyrants to support a corrupt system; errour and iniquity become sacred. Under such a system, the multitude are fettered by the prejudices of education, and awed by the dread of power, from the free exercise of their reason. These principles will account for the many absurd and execrable tenets and practices with regard to government, morals, and religion, which have been invented and established in opposition to the unbiassed sentiments, and in derogation of the natural rights of mankind. But, after making all the exceptions and abatements, of which these facts and narratives, if admitted in their fullest extent, would justify the claim, still it cannot be denied, but is even acknowledged, that some sorts of actions command and receive the esteem of mankind more than others; and that the approbation of them is general, though not universal. It will certainly be sufficient for our purpose to observe, that the dictates of reason are neither more general, nor more uniform, nor more certain, nor more commanding, than the dictates of the moral sense. Nay, farther; perhaps, upon inquiry, we shall find, that those obliquities, extravagancies, and inconsistencies of conduct, that are produced as proofs of the nonexistence or inutility of the moral sense, are, in fact, chargeable to that faculty, which is meant to be substituted in its place. We shall find that men always approve upon an opinion ― true or false, but still an opinion ― that the actions approved have the qualities and tendencies, which are the proper objects of approbation. They suppose that such actions will promote their own interest; or will be conducive to the publick good; or are required by the Deity; when, in truth, they have all the contrary properties ― may be forbidden by the Deity, and may be detrimental both to publick and to private good. But when all this happens, to what cause is it to be traced? Does it prove the nonexistence of a moral sense, or does it prove, in such instances, the weakness or perversion of reason? The just solution is, that, in such instances, it is our reason, which presents false appearances to our moral sense.
94. Tatler No. 103.
It is with much reluctance, that the power of our instinctive or intuitive faculties is acknowledged by some philosophers. That the brutes are governed by instinct, but that man is governed by reason, is their favourite position. But fortunately for man, this position is not founded on truth. Our instincts, as well as our rational powers, are far superiour, both in number and in dignity, to those, which the brutes enjoy; and it were well for us, on many occasions, if we laid our reasoning systems aside, and were more attentive in observing the genuine impulses of nature. In this enlarged and elevated meaning, the sentiment of Pope95 receives a double portion of force and sublimity.
"And reason raise o'er instinct as you can,
In this, 'tis God directs, in that, 'tis man."
95. Ess. on Man. Ep. 3. v. 99.
This sentiment is not dictated merely in the fervid glow of enraptured poetry; it is affirmed by the deliberate judgment of calm, sedate philosophy. Our instincts are no other than the oracles of eternal wisdom; our conscience, in particular, is the voice of God within us: it teaches, it commands, it punishes, it rewards. The testimony of a good conscience is the purest and the noblest of human enjoyments.
It will be proper to examine a little more minutely the opinions of those, who allege reason to be the sole directress of human conduct. Reason may, indeed, instruct us in the pernicious or useful tendency of qualities and actions: but reason alone is not sufficient to produce any moral approbation or blame. Utility is only a tendency to a certain end; and if the end be totally indifferent to us, we shall feel the same indifference towards the means. It is requisite that sentiment should intervene, in order to give a preference to the useful above the pernicious tendencies.
Reason judges either of relations or of matters of fact. Let us consider some particular virtue or vice under both views. Let us take the instance of ingratitude. This has place, when good will is expressed and good offices are performed on one side, and ill will or indifference is shown on the other. The first question is ― what is that matter of fact, which is here called a vice? Indifference or ill will. But ill will is not always, nor in all circumstances a crime: and indifference may, on some occasions, he the result of the most philosophick fortitude. The vice of ingratitude, then, consists not in matter of fact.
Let us next inquire into the relations, which reason can discover, among the materials, of which ingratitude is composed. She discovers good will and good offices on one side, and ill will or indifference on the other. This is the relation of contrariety. Does ingratitude consist in this? To which side of the contrary relation is it to be placed? For this relation of contrariety is formed as much by good will and good offices, as by ill will or indifference. And yet the former deserves praise as much as the latter deserves blame.
If it shall be said, that the morality of an action does not consist in the relation of its different parts to one another, but in the relation of the whole actions to the rule; and that actions are denominated good or ill, as they agree or disagree with that rule; another question occurs ― What is this rule of right? by what is it discovered or determined? By reason, it is said. How does reason discover or determine this rule? It must be by examining facts or the relations of things. But by the analysis which has been given of the particular instance under our consideration, it has appeared that the vice of ingratitude consists neither in the matter of fact, nor in the relation of the parts, of which the tact is composed. Objects in the animal world, nay inanimate objects, may have to each other all the same relations, which we observe in moral agents; but such objects are never supposed to be susceptible of merit or demerit, of virtue or vice.
The ultimate ends of human actions, can never, in any case, be accounted for by reason. They recommend themselves entirely to the sentiments and affections of men, without dependence on the intellectual faculties. Why do you take exercise? Because you desire health. Why do you desire health? Because sickness is painful. Why do you hate pain? No answer is heard. Can one be given? No. This is an ultimate end, and is not referred to any farther object.
To the second question, you may, perhaps, answer, that you desire health, because it is necessary for your improvement in your profession. Why are you anxious to make this improvement? You may, perhaps, answer again, because you wish to get money by it. Why do you wish to get money? Because, among other reasons, it is the instrument of pleasure. But why do you love pleasure? Can a reason be given for loving pleasure, any more than for hating pain? They are both ultimate objects. 'Tis impossible there can be a progress in infnitum; and that one thing can always be a reason, why another is hated or desired. Something must be hateful or desirable on its own account, and because of its immediate agreement or disagreement with human sentiment and affection.
Virtue and vice are ends; and are hateful or desirable on their own account. It is requisite, therefore, that there should be some sentiment, which they touch ― some internal taste or sense, which distinguishes moral good and evil, and which embraces one, and rejects the other. Thus are the offices of reason and of the moral sense at last ascertained. The former conveys the knowledge of truth and falsehood: the latter, the sentiment of beauty and deformity, of vice and virtue. The standard of one, founded on the nature of things, is eternal and inflexible. The standard of the other is ultimately derived from that supreme will, which bestowed on us our peculiar nature, and arranged the several classes and orders of existence. in this manner, we return to the great principle, from which we set out. It is necessary that reason should be fortified by the moral sense: without the moral sense, a man may be prudent, but he cannot be virtuous.
Philosophers have degraded our senses below their real importance. They represent them as powers, by which we have sensations and ideas only. But this is not the whole of their office; they judge as well as inform. Not confined to the mere office of conveying impressions, they are exalted to the function of judging of the nature and evidence of the impressions they convey. If this be admitted, our moral faculty may, without impropriety, be called the moral sense. Its testimony, like that of the external senses, is the immediate testimony of nature, and on it we have the same reason to rely. In its dignity, it is, without doubt, far superiour to every other power of the mind.
The moral sense, like all our other powers, comes to maturity by insensible degrees. It is peculiar to human nature. It is both intellectual and active. It is evidently intended, by nature, to be the immediate guide and director of our conduct, after we arrive at the years of understanding.
III. Reason and conscience can do much; but still they stand in need of support and assistance. They are useful and excellent monitors; but, at some times, their admonitions are not sufficiently clear; at other times, they are not sufficiently powerful; at all times, their influence is not sufficiently extensive. Great and sublime truths, indeed, would appear to a few; but the world, at large, would be dark and ignorant. The mass of mankind would resemble a chaos, in which a few sparks, that would diffuse a glimmering light, would serve only to show, in a more striking manner, the thick darkness with which they are surrounded. Their weakness is strengthened, their darkness is illuminated, their influence is enlarged by that heaven-descended science, which has brought life and immortality to light. In compassion to the imperfection of our internal powers, our all-gracious Creator, Preserver, and Ruler has been pleased to discover and enforce his laws, by a revelation given to us immediately and directly from himself. This revelation is contained in the holy scriptures. The moral precepts delivered in the sacred oracles form a part of the law of nature, are of the same origin, and of the same obligation, operating universally and perpetually.
On some important subjects, those in particular, which relate to the Deity, to Providence, and to a future state, our natural knowledge is greatly improved, refined, and exalted by that which is revealed. On these subjects, one who has had the advantage of a common education in a christian country, knows more, and with more certainty, than was known by the wisest of the ancient philosophers.
One superiour advantage the precepts delivered in the sacred oracles clearly possess. They are, of all, the most explicit and the most certain. A publick minister, judging from what he knows of the interests, views, and designs of the state, which he represents, may take his resolutions and measures, in many cases, with confidence and safety; and may presume, with great probability, how the state itself would act. But if, besides this general knowledge, and these presumptions highly probable, he was furnished also with particular instructions for the regulation of his conduct; would he not naturally observe and govern himself by both rules? In cases, where his instructions are clear and positive, there would be an end of all farther deliberation. In other cases, where his instructions are silent, he would supply them by his general knowledge, and by the information, which he could collect from other quarters, concerning the counsels and systems of the commonwealth. Thus it is with regard to reason, conscience, and the holy scriptures. Where the latter give instructions, those instructions are supereminently authentick. But whoever expects to find, in them, particular directions for every moral doubt which arises, expects more than he will find. They generally presuppose a knowledge of the principles of morality; and are employed not so much in teaching new rules on this subject, as in enforcing the practice of those already known, by a greater certainty, and by new sanctions. They present the warmest recommendations and the strongest inducements in favour of virtue: they exhibit the most powerful dissuasives from vice. But the origin, the nature, and the extent of the several rights and duties they do not explain; nor do they specify in what instances one right or duty is entitled to preference over another. They are addressed to rational and moral agents, capable of previously knowing the rights of men, and the tendencies of actions; of approving what is good, and of disapproving what is evil.
These considerations show, that the scriptures support, confirm, and corroborate, but do not supercede the operations of reason and the moral sense. The information with regard to our duties and obligations, drawn from these different sources, ought not to run in unconnected and diminished channels: it should flow in one united stream, which, by its combined force and just direction, will impel us uniformly and effectually towards our greatest good.
We have traced, with some minuteness, the efficient principle of obligation, and the several means, by which our duty may be known. It will be proper to turn our attention back to the opinions that have been held, in philosophy and jurisprudence, concerning this subject. On a review of them, we shall now find that, in general, they are defective rather than erroneous; that they have fallen short of the mark, rather than deviated from the proper course.
The fitness of things denotes their fitness to produce our happiness: their nature means that actual constitution of the world, by which some things produce happiness, and others misery. Reason is one of the means, by which we discern between those things, which produce the former, and those things, which produce the latter. The moral sense feels and operates to promote the same essential discriminations. Whatever promotes the greatest happiness of the whole, is congenial to the principles of utility and sociability: and whatever unites in it all the foregoing properties, must be agreeable to the will of God: for, as has been said once, and as ought to be said again, his will is graciously comprised in this one paternal precept ― Let man pursue his happiness and perfection.
The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things. While these continue to be the same, it must continue to be the same also. This immutability of nature's laws has nothing in it repugnant to the supreme power of an all-perfect Being. Since he himself is the author of our constitution; he cannot but command or forbid such things as are necessarily agreeable or disagreeable to this very constitution. He is under the glorious necessity of not contradicting himself. This necessity, far from limiting or diminishing his perfections, adds to their external character, and points out their excellency.
The law of nature is universal. For it is true, not only that all men are equally subject to the command of their Maker; but it is true also, that the law of nature, having its foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction.
This law, or right reason, as Cicero96 calls it, is thus beautifully described by that eloquent philosopher. "It is, indeed," says he, "a true law, conformable to nature, diffused among all men, unchangeable, eternal. By its commands, it calls men to their duty: by its prohibitions, it deters them from vice. To diminish, to alter, much more to abolish this law, is a vain attempt. Neither by the senate, nor by the people, can its powerful obligation be dissolved. It requires no interpreter or commentator. It is not one law at Rome, another at Athens; one law now, another hereafter: it is the same eternal and immutable law, given at all times and to all nations: for God, who is its author and promulgator, is always the sole master and sovereign of mankind."
96. De Rep. 1. 3.
"Man never is," says the poet, in a seeming tone of complaint, "but always to be blest." The sentiment would certainly be more consolatory, and, I think, it would be likewise more just, if we were to say ― man ever is; for always to be blest. That we should have more and better things before us, than all that we have yet acquired or enjoyed, is unquestionably a most desirable state. The reflection on this circumstance, far from diminishing our sense or the importance of our present attainments and advantages, produces the contrary effects. The present is gilded by the prospect of the future.
When Alexander had conquered a world, and had nothing left to conquer; what did he do? He sat down and wept. A well directed ambition that has conquered worlds, is exempted from the fate of that of Alexander the Great: it still sees before it more and better worlds as the objects of conquest.
It is the glorious destiny of man to be always progressive. Forgetting those things that are behind, it is his duty, and it is his happiness, to press on towards those that are before. In the order of Providence, as has been observed on another occasion, the progress of societies towards perfection resembles that of an individual. This progress has hitherto been but slow: by many unpropitious events, it has often been interrupted but may we not indulge the pleasing expectation, that, in future, it will be accelerated; and will meet with fewer and less considerable interruptions.
Many circumstances seem ― at least to a mind anxious to see it, and apt to believe what it is anxious to see ― many circumstances seem to indicate the opening of such a glorious prospect. The principles and the practice of liberty are gaining ground, in more than one section of the world. Where liberty prevails, the arts and sciences lift up their heads and flourish. Where the arts and sciences flourish, political and moral improvements will likewise be made. All will receive from each, and each will receive from all, mutual support and assistance mutually supported and assisted, all may be carried to a degree of perfection hitherto unknown; perhaps, hitherto not believed.
"Men," says the sagacious Hooker, "if we view them in their spring, are, at the first, without understanding or knowledge at all. Nevertheless, from this utter vacuity, they grow by degrees, till they become at length to be even as the angels themselves are. That which agreeth to the one now, the other shall attain to in the end: they are not so far disjoined and severed, but that they come at length to meet."97
97. Hooker, b. 1. s. 6. p. 8.
Our progress in virtue should certainly hear a just proportion to our progress in knowledge. Morals are undoubtedly capable of being carried to a much higher degree of excellence than the sciences, excellent as they are. Hence we may infer, that the law of nature, though immutable in its principles, will be progressive in its operations and effects. Indeed, the same immutable principles will direct this progression. In every period of his existence, the law, which the divine wisdom has approved for man, will not only be fitted, to the cotemporary degree, but will be calculated to produce, in future, a still higher degree of perfection.
A delineation of the laws of nature, has been often attempted. Books, under the appellations of institutes and systems of that law, have been often published. From what has been said concerning it, the most finished performances executed by human hands cannot be perfect. But most of them have been rude and imperfect to a very unnecessary, some, to a shameful degree.
A more perfect work than has yet appeared upon this great subject, would be a most valuable present to mankind. Even the most general outlines of it cannot, at least in these lectures, be expected from me.
CHAPTER IV.
OF THE LAW OF NATIONS.
THE law of nature, when applied to states or political societies, receives a new name, that of the law of nations. This law, important in all states, is of peculiar importance in free ones. The States of America are certainly entitled to this dignified appellation. A weighty part of the publick business is transacted by the citizens at large. They appoint the legislature, and, either mediately or immediately, the executive servants of the publick. As the conduct of a state, both with regard to itself and others, must greatly depend upon the character, the talents, and the principles of those, to whom the direction of that conduct is intrusted; it is highly necessary that those who are to protect the rights, and to perform the duties of the commonwealth, should be men of proper principles, talents, and characters: if so, it is highly necessary that those who appoint them should be able, in some degree at least, to distinguish and select those men, whose principles, talents, and characters are proper. In order to do this, it is greatly useful that they have, at least, some just and general knowledge of those rights that are to be protected, and of those duties that are to be performed. Without this, they will be unable to form a rational conjecture, concerning the future conduct of those whom they are to elect. Nay, what is more; without some such general and just knowledge, they will be unable to form a rational judgment, concerning the past and present conduct of those whom they have already elected; and, consequently, will be unable to form a rational determination whether, at the next election, they should reappoint them, or substitute others in their place. As the practice of the law of nations, therefore, must, in a free government, depend very considerably on the acts of the citizens, it is of high import that, among those citizens, its knowledge be generally diffused.
But, if the knowledge of the law of nations is greatly useful to those who appoint, it must surely be highly necessary to those who are appointed, the publick servants and stewards of the commonwealth. Can its interests be properly managed, can its character be properly supported, can its happiness be properly consulted, by those who know not what it owes to others, what it owes to itself, what it has a right to claim from others, and what it has a right to provide for itself? In a free commonwealth, the path to publick service and to publick honour is open to all. Should not all, therefore, sedulously endeavour to become masters of such qualifications, as will enable them to tread this path with credit to themselves, and with advantage to their country?
In the United States, a system of republicks, the law of nations acquires an importance still more peculiar and distinguished. In the United States, the law of nations operates upon peculiar relations, and upon those relations with peculiar energy. Well am I justified, on every account, in announcing the dignity and greatness of the subject, upon which lain now to enter.
On all occasions, let us beware of being misled by names. Though the law, which I am now to consider, receives a new appellation; it retains, unimpaired, its qualities and its power. The law of nations, as well as the law of nature, is of obligation indispensable: the law of nations, as well as the law of nature, is of origin divine.
The opinions of many concerning the law of nations have been very vague and unsatisfactory; and if such have been the opinions, we have little reason to be surprised, that the conduct of nations has too often been diametrically opposite to the law, by which it ought to have been regulated. In the judgment of some writers, it would seem, for instance, that neither the state which commences an unjust war, nor the chief who conducts it, derogates from the general sanctity of their respective characters. An ardent love of their country they seem to have thought a passion too heroick, to be restrained within the narrow limits of systematick morality; and those have been too often considered as the greatest patriots, who have contributed most to gratify the publick passion for conquest and power. States, as well as monarchs, have too frequently been blinded by ambition. Of this there is scarcely a page in ancient or in modern history, relating to national contentions, but will furnish the most glaring proofs. The melancholy truth is, that the law of nations, though founded on the most solid principles of natural obligation, has been but imperfectly viewed in theory, and has been too much disregarded in practice.
The profound and penetrating Bacon was not inattentive to the imperfect state, in which he found the science of the law of nations. As, in another science, that enlightened philosophical guide pointed to the discoveries of a Newton; so in this, in all probability, he laid a foundation for the researches of a Grotius. For we have reason to believe, as we are told by Barbeyrac,98 that it was the study of the works of Lord Bacon, that first inspired Grotius with the design of writing a system concerning the law of nations. In this science Grotius did much; for he was well qualified to do much. Extensive knowledge, prodigious reading, indefatigable application to study, all these were certainly his. Yet with all these, he was far from being as successful in law, as Sir Isaac Newton was in philosophy. He was unfortunate in not setting out on right and solid principles. His celebrated book of the Rights of War and Peace is indeed useful; but it ought not to be read without a due degree of caution: nor ought all his doctrines to be received, without the necessary grains of allowance. At this we ought not to wonder, when we consider the extent, the variety, and the importance of his subject, and that, before his time, it was little known, and much neglected. His opinion concerning the source and the obligation of the law of nations is very defective. He separates that law from the law of nature, and assigns to it a different origin. "When many men," says he, "at different times and places, unanimously affirm the same thing for truth; this should be ascribed to a general cause. In the subjects treated of by us, this cause can be no other than either a just inference drawn from the principles of nature, or a universal consent. The first discovers to us the law of nature, the second the law of nations."99 The law of nations, we see, he traces from the principle of universal consent. The consequence of this is, that the law of nations would be obligatory only upon those by whom the consent was given, and only by reason of that consent. The farther consequence would be, that the law of nations would lose a part, and the greatest part, of its obligatory force, and would also be restrained as to the sphere of its operations. That it would lose the greatest part of its obligatory force, sufficiently appears from what we have said at large concerning the origin and obligation of natural law, evincing it to be the will of God. That it would be restrained as to the sphere of its operations, appears from what Grotius himself says, when he explains his meaning in another place. He qualifies the universality of his expression by adding these words, "at least the most civilized nations; " and he afterwards says that this addition is made "with reason."100 On the least civilized nations, therefore, the law of nations would not, according to his account of it, be obligatory.
I admit that there are laws of nations ― perhaps it is to be wished that they were designated by an appropriate name; for names, after all, will have their influence on operations ― I freely admit that there are laws of nations, which are founded altogether upon consent. National treaties are laws of nations, obligatory solely by consent. The customs of nations become laws solely by consent.
98. Pref. to Puff. s. 29. p. 79.
99. Gro. Prel. s. 41.
100. Gro. 14.
Both kinds are certainly voluntary. But the municipal laws of a state are not more different from the law of nature, than those voluntary laws of nations are, in their source and power, different from the law of nations, properly so called. Indeed, those voluntary laws of nations are as much under the control of the law of nations, properly so called, as municipal laws are under the control of the law of nature. The law of nations, properly so called, is the law of nature applied to states and sovereigns. The law of nations, properly so called, is the law of states and sovereigns, obligatory upon them in the same manner, and for the same reasons, as the law of nature is obligatory upon individuals. Universal, indispensable, and unchangeable is the obligation of both.
But it will naturally be asked, if the law of nations bears, as from this account it bears, the same relation to states, which the law of nature bears to individuals; if the law of nature and the law of nations are accompanied with the same obligatory power, and are derived from the same common source; why should the law of nations have a distinct name? Why should it be considered as a separate science? Some have thought that the difference was only in name; and if only in name, there could surely be no solid reason for establishing even that difference. Of those, who thought so, Puffendorff was one. "Many," says he,101 "assert the law of nature and of nations to be the very same thing, differing no otherwise than in external denomination. Thus Mr. Hobbes divides natural law, into the natural law of men, and the natural law of states, commonly called the law of nations. He observes, that the precepts of both are the same; but that as states, when once instituted, assume the personal properties of men, what we call the law of nature, when we speak of particular men, we denominate the law of nations, when we apply it to whole states, nations, or people. This opinion," continues Puffendorff, "we, for our part, readily subscribe to; nor do we conceive, that there is any other voluntary or positive law of nations, properly vested with a true and legal force, and obliging as the ordinance of a superiour power." By the way, we may here observe, that, with regard to the law of nations, Grotius and Puffendorff seem to have run into contrary extremes. The former was of opinion, that the whole law of nations took its origin and authority from consent. The latter was of opinion, that every part of the law of nations was the same with the law of nature, that no part of it could receive its obligatory force from consent; because, according to his favourite notion of law, no such thing could exist without the intervention of a superiour power. The truth seems to lie between the two great philosophers. The law of nations, properly so called, or, as it may be termed, the natural law of nations, is a part, and an important part, of the law of nature. The voluntary law of nations falls under the class of laws that are positive. If a particular name had been appropriated to this last species of law, it is probable that much confusion and ambiguity, on this subject, would have been avoided; and the distinction between the different parts of that law, comprehended, at present, under the name of the law of nations, would have been as clearly marked, as uniformly preserved, and as familiarly taken, as the well known and well founded distinction between natural and municipal law. But to return.
101. Puff. p. 149. b. 2, c. 3. s. 23.
As Puffendorff thought that the law of nature and the law of nations were precisely the same, he has not, in his book on these subjects, treated of the law of nations separately; but has every where joined it with the law of nature, properly so called. His example has been followed by the greatest part of succeeding writers. But the imitation of it has produced a confusion of two objects, which ought to have been viewed and studied distinctly and apart. Though the law of nations, properly so called, be a part of the law of nature; though it spring from the same source; and though it is attended with the same obligatory power; yet it must be remembered that its application is made to very different objects. The law of nature is applied to individuals: the law of nations is applied to states. The important difference between the objects, will occasion a proportioned difference in the application of the law.102 This difference in the application renders it fit that the law of nature, when applied to states, should receive an appropriate name, and should be taught and studied as a separate science.
102. Vat. Pref. 1.
Though states or nations are considered as moral persons; yet the nature and essence of these moral persons differ necessarily, in many respects, from the nature and essence of the individuals, of whom they are composed. The application of a law must be made in a manner suitable to its object. The application, therefore, of the law of nature to nations must be made in a manner suitable to nations: its application to individuals must be made in a manner suitable to individuals. But as nations differ from individuals; the application of the law suitable to the former, must be different from its application suitable to the latter. To nations this different application cannot be made with accuracy, with justness, and with perspicuity, without the aid of new and discriminating rules. These rules will evince, that, on the principles themselves of the law of nature, that law, when applied to nations, will prescribe decisions different from those which it would prescribe, when applied to individuals. To investigate those rules; to deduce, from the same great and leading principles, applications differing in proportion to the difference of the persons to which they are applied, is the object of the law of nations, considered as a science distinct and separate from that of the law of nature.
Having given you this general idea and description of the law of nations; need I expatiate on its dignity and importance? The law of nations is the law of sovereigns. In free states, such as ours, the sovereign or supreme power resides in the people. In free states, therefore, such as ours, the law of nations is the law of the people. Let us again beware of being misled by an ambiguity, sometimes, such is the structure of language, unavoidable. When I say that, in free states, the law of nations is the law of the people; I mean not that it is a law made by the people, or by virtue of their delegated authority as, in free states, all municipal laws are. But when I say that, in free states, the law of nations is the law of the people; I mean that, as the law of nature, in other words, as the will of nature's God, it is indispensably binding upon the people, in whom the sovereign power resides; and who are, consequently, under the most sacred obligations to exercise that power, or to delegate it to such as will exercise it, in a manner agreeable to those rules and maxims, which the law of nature prescribes to every state, for the happiness of each, and for the happiness of all. How vast ― how important ― how interesting are these truths! They announce to a free people how exalted their rights; but, at the same time, they announce to a free people how solemn their duties are. If a practical knowledge and a just sense of these rights and these duties were diffused among the citizens, and properly impressed upon their hearts and minds; how great, how beneficial, how lasting would be their fruits! But, unfortunately, as there have been and there are, in arbitrary governments, flatterers of princes; so there have been and there are, in free governments, flatterers of the people. One distinction, indeed, is to be taken between them. The latter herd of flatterers persuade the people to make an improper use of the power, which of right they have: the former herd persuade princes to make an improper use of power, which of right they have not. In other respects, both herds are equally pernicious. Both flatter to promote their private interests: both betray the interests of those whom they flatter.
It is of the highest, and, in free states, it is of the most general importance, that the sacred obligation of the law of nations should be accurately known and deeply felt. Of all subjects, it is agreeable and useful to form just and adequate conceptions; but of those especially, which have an influence on the practice and morality of states. For it is a serious truth, however much it has been unattended to in practice, that the laws of morality are equally strict with regard to societies, as to the individuals of whom the societies are composed. It must be owing either to ignorance, or to a very unjustifiable disregard to this great truth, that some transactions of publick bodies have often escaped censure; nay, sometimes have received applause, though those transactions have been such, as none of the individuals composing those bodies would have dared to introduce into the management of his private affairs; because the person introducing them would have been branded with the most reproachful of names and characters. It has been long admitted, by those who have been the best judges of private life and manners, that integrity and sound policy go hand in hand. It is high time that this maxim should find an establishment in the councils of states, and in the cabinets of princes. Its establishment there would diffuse far and wide the most salutary and benign effects.
Opinions concerning the extent of the law of nations have not been less defective and inadequate, than those concerning its origin and obligatory force. Some seem to have thought, that this law respects and regulates the conduct of nations only in their intercourse with each other. A very important branch of this law ― that containing the duties which a nation owes itself ― seems to have escaped their attention. " The general principle," says Burlamaqui,103 "of the law of nations, is nothing more than the general law of sociability, which obliges nations to the same duties as are prescribed to individuals. Thus the law of natural equality, which prohibits injury and commands the reparation of damage done; the law of beneficence, and of fidelity to our engagements, are laws respecting nations, and imposing, both on the people and on their respective sovereigns, the same duties as are prescribed to individuals." Several other writers concerning the law of nations appear to have formed the same imperfect conceptions with regard to its extent. Let us recur to what the law of nature dictates to an individual. Are there not duties which he owes to himself? Is he not obliged to consult and promote his preservation, his freedom, his reputation, his improvement, his perfection, his happiness? Now that we have seen the law of nature as it respects the duties of individuals, let us see the law of nations as it respects the duties of states, to themselves: for we must recollect that the law of nations is only the law of nature judiciously applied to the conduct of states. From the duties of states, as well as of individuals, to themselves, a number of corresponding rights will be found to arise.
103. 2. Burl. S. 4. 1. Burl. 196
A state ought to attend to the preservation of its own existence. In what does the existence of a state consist? It consists in the association of the individuals, of which it is composed. In what consists the preservation of this existence? It consists in the duration of that association. When this association is dissolved, the state ceases to exist; though all the members, of whom it was composed, may still remain. It is the duty of a state, therefore, to preserve this association undissolved and unimpaired. But in this, as in many other instances, a difference between the nature of states and the nature of individuals will occasion, for the reasons already mentioned, a proportioned difference in the application of the law of nature. Nations, as well as men, are taught by the law of nature, gracious in its precepts, to consider their happiness as the great end of their existence. But without existence there can be no happiness: the means, therefore, must be secured, in order to secure the end. But yet, between the duty of self-preservation required from a state, and the duty of self-preservation required from a man, there is a most material difference; and this difference is founded on. the law of nature itself. A nation has a right to assign to its existence a voluntary termination: a man has not. What can be the reasons of this difference? Several may be given. By the voluntary act of the individuals forming the nation, the nation was called into existence: they who bind, can also untie: by the voluntary act, therefore, of the individuals forming the nation, the nation may be reduced to its original nothing. But it was not by his own voluntary act that the man made his appearance upon the theatre of life; he cannot, therefore, plead the right of the nation, by his own voluntary act to make his exit. He did not make; therefore, he has no right to destroy himself. He alone, whose gift this state of existence is, has the right to say when and how it shall receive its termination.
Again; though nations are considered as moral persons, and, in that character, as entitled, in many respects, to claim the rights, and as obliged, in many respects, to perform the duties of natural persons; yet we must always remember that of natural persons those moral persons are composed; that for the sake of natural persons those moral persons were formed; and that while we suppose those moral persons to live, and think, and act, we know that they are natural persons alone, who really exist or feel, who really deliberate, resolve, and execute. Now none of these observations resulting from the nature and essence of the nation, can be applied, with any degree of propriety, to the nature and essence of the man: and, therefore, the inferences drawn from these observations, with regard to the case of the nation, are wholly inapplicable to the case of the man.
One of these inferences is, that as it was for the happiness of the members that the moral existence of the nation was produced; so the happiness of the members may require this moral existence to be annihilated. Can this inference be applied to the man?
Further; there may be a moral certainty, that, of the voluntary dissolution of the nation, the necessary consequence will be an increase of happiness. Can such a consequence be predicted, with moral certainty, concerning the voluntary death of the man?
This instance shows, in a striking manner, how, on some occasions, the law of nature, when applied to a nation, may dictate or authorize a measure of conduct very different from that, which it would authorize and dictate with regard to a man.
As it is, in general, the duty of a state to preserve itself; so it is, in general, its duty to preserve its members. This is a duty which it owes to them, and to itself. It owes it to them, because their advantage was the final cause of their joining in the association, and engaging to support it; and they ought not to be deprived of this advantage, while they fulfil the conditions, on which it was stipulated. This duty the nation owes to itself, because the loss of its members is a proportionable loss of its strength; and the loss of its strength is proportionably injurious both to its security, and to its preservation. The result of these principles is, that the body of a nation should not abandon a country, a city, or even an individual, who has not forfeited his rights in the society.
The right and duty of a state to preserve its members are subject to the same limitations and conditions, as its right and duty to preserve itself. As, for some reasons, the society may be dissolved; so, for others, it may be dismembered. A part may be separated from the other parts; and that part may either become a new state, or may associate with another state already formed. An illustration of this doctrine may be drawn from a recent instance, which has happened in the commonwealth of Virginia. The district of Kentucky has, by an amicable agreement, been disjoined from the rest of the commonwealth, and has been formed into a separate state. It is a pleasure, perhaps I may add it is a laudable pride, to be able to furnish, to the world, the first examples of carrying into practice the most sublime parts of the most sublime theories of government and law.
When a nation has a right, and is under an obligation to preserve itself and its members; it has, by a necessary consequence, a right to do every thing, which, without injuring others, it can do, in order to accomplish and secure those objects. The law of nature prescribes not impossibilities: it imposes not an obligation, without giving a right to the necessary means of fulfilling it. The same principles, which evince the right of a nation to do every thing, which it lawfully may, for the preservation of itself and of its members, evince its right, also, to avoid and prevent, as much as it lawfully may, every thing which would load it with injuries, or threaten it with danger.
It is the right, and generally it is the duty, of a state, to form a constitution, to institute civil government, and to establish laws. If the constitution formed, or the government instituted, or the laws established shall, on experience, be found weak, or inconvenient, or pernicious; it is the right, and it is the duty of the state to strengthen, or alter, or abolish them. These subjects will be fully treated in another place.
A nation ought to know itself. It ought to form a just estimate of its own situation, both with regard to itself and to its neighbours. It ought to learn the excellencies, and the blemishes likewise of its own constitution. It ought to review the instances in which it has already attained, and it ought to ascertain those in which it falls short of, a practicable degree of perfection. It ought to find out what improvements are peculiarly necessary to be promoted, and what faults it is peculiarly necessary to avoid. Without a discriminating sagacity of this kind, the principle of imitation, intended for the wisest purposes in states as well as in individuals, would be always an uncertain, sometimes a dangerous guide. A measure extremely salutary to one state, might be extremely injurious to another. What, in one situation, would be productive of peace and happiness, might, in another, be the unfortunate cause of infelicity and war. Above all things, the genius and manners of the people ought to be carefully consulted. The government ought to be administered agreeably to this genius and these manners; but how can this be done, if this genius and these manners are unknown? This duty of self-knowledge is of vast extent and of vast importance, in nations as well as in men.
To love and to deserve honest fame, is another duty of a people, as well as of an individual. The reputation of a state is not only a pleasant, it is also a valuable possession. It attracts the esteem, it represses the unfriendly inclinations of its neighbours. This reputation is acquired by virtue, and by the conduct which virtue inspires. It is founded on the publick transactions of the state, and on the private behaviour of its members.
A state should avoid ostentation, but it should support its dignity. This should never be suffered to be degraded among other nations. In transactions between states, an attention to this object is of much greater importance than is generally imagined. Even the marks and titles of respect, to which a nation, and those who represent a nation, are entitled, ought not to be considered as trivial they should be claimed with firmness: they should be given with alacrity. The dignity, the equality, the mutual independence, and the frequent intercourse of nations render such a tenour of conduct altogether indispensable.
It is the duty of a nation to intrust the management of its affairs only to its wisest and best citizens. The immense importance of this duty is easily seen; but it is not sufficiently regarded. The meanest menial of a family will not be received without examination and cautious inquiry. The most important servants of the publick will be voted in without consideration and without care. In electioneering, as it is called, we frequently find warm recommendations and active intrigues in favour of candidates for the highest offices, to whom the recommenders and intriguers would not, if put to the test, intrust the management of the smallest part of their own private interest. An election ground, the great theatre of original sovereignty, on which nothing but inviolable integrity and independent virtue should be exhibited, is often and lamentably transformed into a scene of the vilest and lowest debauchery and deception. An election maneuvre, an election story, are names appropriated to a conduct, which, in other and inferiour transactions, would be branded, and justly branded, with the most opprobrious appellations. Even those, who may be safely trusted every where else, will play false at elections. The remarks, which I have made concerning general elections, may be too often made, with equal truth, concerning other appointments to offices. But these things ought not to be. When the obligation and the importance of the great national duty required at elections ― a duty prescribed by him who made us free ― a duty prescribed that we may continue free ― when all this shall be sufficiently diffused, and known, and felt; these things will not be. The people will then elect conscientiously; and will require conscientious conduct from those whom they elect.
A nation ought to encourage true patriotism in its members. The first step towards this encouragement is to distinguish between its real and its pretended friends, The discrimination, it is true, is often difficult, sometimes impracticable: but it is equally true, that it may frequently be made. Let the same care be employed, let the same pains be taken, to ascertain the marks of deceit and the marks of sincerity in publick life, and in intriguing for publick office, which are usually taken and employed in private life, and in solicitations for acts of private friendship. The care and pains will sometimes, indeed, be fruitless; but they will sometimes, too, be successful; at all times, they will be faithful witnesses, that those, who have employed them, have discharged their duty.
If a nation establish itself, or extend its establishment in a country already inhabited by others; it ought to observe strict justice, in both instances, with the former inhabitants. This is a part of the law of nations, that very nearly concerns the United States. It ought, therefore, to be well understood. The whole earth is allotted for the nourishment of its inhabitants; but it is not sufficient for this purpose, unless they aid it by labour and culture. The cultivation of the earth, therefore, is a duty incumbent on man by the order of nature. Those nations that live by hunting, and have more land than is necessary even for the purposes of hunting, should transfer it to those who will make a more advantageous use of it: those who will make this use of it ought to pay, for they can afford to pay, a reasonable equivalent. Even when the lands are no more than sufficient for the purposes of hunting, it is the duty of the new inhabitants, if advanced in society, to teach, and it is the duty of the original inhabitants, if less advanced in society, to learn, the arts and uses of agriculture. This will enable the latter gradually to contract, and the former gradually to extend their settlements, till the science of agriculture is equally improved in both. By these means, the intentions of nature will be fulfilled; the old and the new inhabitants will be reciprocally useful; peace will be preserved, and justice will be done.
It is the duty of a nation to augment its numbers. The performance of this duty will naturally result from the discharge of its other duties: by discharging them, the number of persons born in the society will be increased; and strangers will be incited to wish a participation in its blessings. Among other means of increasing the number of citizens, there are three of peculiar efficacy. The first is, easily to receive all strangers of good character, and to communicate to them the advantages of liberty. The state will be thus filled with citizens, who will bring with them commerce and the arts, and a rich variety of manners and characters. Another means conducive to the same end is, to encourage marriages. These are the pledges of the state. A third means for augmenting the number of inhabitants is, to preserve the rights of conscience inviolate. The right of private judgment is one of the greatest advantages of mankind; and is always considered as such. To be deprived of it is insufferable. To enjoy it lays a foundation for that peace of mind, which the laws cannot give, and for the loss of which the laws can offer no compensation.
A nation should aim at its perfection. The advantage and improvement of the citizens are the ends proposed by the social union. Whatever will render that union more perfect will promote these ends. The same principles, therefore, which show that a man ought to pursue the perfection of his nature, will show, likewise, that the citizens ought to contribute every thing in their power towards the perfection of the state. This right involves the right of preventing and avoiding every thing, which would interrupt or retard the progress of the state towards its perfection. It also involves the right of acquiring every thing, without which its perfection cannot be promoted or obtained.
Happiness is the centre, to which men and nations are attracted: it is, therefore, the duty of a nation to consult its happiness. In order to do this, it is necessary that the nation be instructed to search for happiness where happiness is to be found. The impressions that are made first, sink deepest; they frequently continue through life. That seed, which is sown in the tender minds of youth, will produce abundance of good, or abundance of evil. The education of youth, therefore, is of prime importance to the happiness of the state. The arts, the sciences, philosophy, virtue, and religion, all contribute to the happiness, all, therefore, ought to receive the encouragement, of the nation. In this manner, publick and private felicity will go hand in hand, and mutually assist each other in their progress.
When men have formed themselves into a state or nation, they may reciprocally enter into particular engagements, and, in this manner, contract new obligations in favour of the members of the community; but they cannot, by this union, discharge themselves from any duties which they previously owed to those, who form no part of the union. They continue under all the obligations required by the universal society of the human race ― the great society of nations. The law of that great and universal society requires, that each nation should contribute to the perfection and happiness of the others. It is, therefore, a duty which every nation owes to itself, to acquire those qualifications, which will fit and enable it to discharge those duties which it owes to others. What those duties are, we shall now very concisely and summarily inquire.
The first and most necessary duty of nations, as well as of men, is to do no wrong or injury. Justice is a sacred law of nations. If the law of the great society of nations requires, as we have seen it to require, that each should contribute to the perfection and happiness of others; the first degree of this duty surely is, that each should abstain from every thing, which would positively impair that perfection and happiness. This great principle prohibits one nation from exciting disturbances in another, from seducing its citizens, from depriving it of its natural advantages, from calumniating its reputation, from debauching the attachment of its allies, from fomenting or encouraging the hatred of its enemies. If, however, a nation, in the necessary prosecution of its own duties and rights, does what is disagreeable or even inconvenient to another, this is not to be considered as an injury; it ought to be viewed as the unavoidable result, and not as the governing principle of its conduct. If, at such conduct, offence is taken, it is the fault of that nation, which takes, not of that nation, which occasions it.
But nations are not only forbidden to do evil; they are also commanded to do good to one another. The duties of humanity are incumbent upon nations as well as upon individuals. An individual cannot subsist, at least he cannot subsist comfortably, by himself. What is true concerning one, is true concerning all. Without mutual good offices and assistance, therefore, happiness could not he procured, perhaps existence could not be preserved. Hence the necessity of the duties of humanity among individuals. Every one is obliged, in the first place, to do what he can for himself; in the next, to do what he can for others; beginning with those with whom he is most intimately connected. The consequence is, that each man is obliged to give to others every assistance, for which they have a real occasion, and which he can give without being wanting to himself. What each is obliged to perform for others, from others he is entitled to receive. Hence the advantage as well as the duty of humanity. These principles receive an application to states as well as to men. Each nation owes to every other the duties of humanity. It is true, there may be some difference in the application, in this as well as in other instances: but the principles of the application are the same. A nation can subsist by itself more securely and more comfortably than an individual can; therefore the duty of mutual assistance will not, at all periods, be equally indispensable, or return with equal frequency. But when it becomes, as it may become, equally indispensable; and when it returns, as it may return, with equal frequency; it ought, in either case, to be equally performed. One individual may attack another daily: a longer time is necessary for the aggression of one nation upon another. The assistance, therefore, which ought to be given to the individual daily, will be necessary for the nation only at more distant intervals of time. But between nations, what the duties of humanity lose in point of frequency, they gain in point of importance, in proportion, perhaps, to the difference between a single individual, and all those individuals of whom the nation is composed.
One nation ought to give to another, not only the assistance necessary to its preservation, but that also which is necessary to its perfection, whenever it is wanted, and whenever, consistently with other superiour duties, it can be given. The cases in which assistance ought to be demanded, and those in which it ought to be given, must be decided respectively by that nation which demands, and by that of which the demand is made. It is incumbent on each to decide properly; not to demand, and not to refuse, without strong and reasonable cause.
It may, perhaps, be uncommon, but it is certainly just, to say that nations ought to love one another. The offices of humanity ought to flow from this pure source. When this happily is the case, then the principles of affection and of friendship prevail among states as among individuals: then nations will mutually support and assist each other with zeal and ardour; lasting peace will be the result of unshaken confidence; and kind and generous principles, of a nature far opposite to mean jealously, crooked policy, or cold prudence, will govern and prosper the affairs of men. And why should not this be the case? When a number of individuals, by the social union, become fellow citizens, can they, by that union, devest themselves of that relation, which subsists between them and the other ― the far greater ― part of the human species? With regard to those, can they cease to be men?
The love of mankind is an important duty and an exalted virtue. Much has been written, much has been said concerning the power of intellectual abstraction, which man possesses, and which distinguishes him so eminently from the inferiour orders of animals. But little has been said, and little has been written, concerning another power of the human mind, still more dignified, and, beyond all comparison, more amiable ― I may call it the power of moral abstraction.
All things in nature are individuals. But when a number of individuals have a near and striking resemblance, we, in our minds, class them together, and refer them to a species, to which we assign a name. Again; when a number of species have a resemblance, though not so near and striking, we, in the same manner, class them also together, and refer them to a genus, to which we likewise assign a name. Different genera may have a resemblance, though still less close and striking; we refer them to a higher genus, till we arrive at being, the highest genus of all. This is the progress of intellectual abstraction.
We are possessed of a moral power, similar in its nature and in its progress ― a principle of good will as well as of knowledge. This principle of benevolence is indeed primarily and chiefly directed towards individuals, those especially, with whom we are or wish to be most intimately connected. But this principle, as well as the other, is capable of abstraction, and of embracing general objects. The culture, the improvement, and the extension of this principle ought to have made, in the estimation of philosophers, as important a figure among the moral, as the other has made among the intellectual powers and operations of the mind; for it is susceptible of equal culture, of equal improvement, and of equal extension.
"After having," says the illustrious Neckar, in his book concerning the importance of religious opinions,104 "proved myself a citizen of France, by my administration, as well as my writings, I wish to unite myself to a fraternity still more extended, that of the whole human race. Thus, without dispersing our sentiments, we may be able to communicate ourselves a great way off, and enlarge, in some measure, the limits of our circle. Glory be to our thinking faculties for it! to that spiritual portion of ourselves, which can take in the past, dart into futurity, and intimately associate itself with the destiny of men of all countries and of all ages!"
104. Pref. 19.
To the same purpose is the sentiment of Cicero, in his beautiful treatise on the nature and offices of friendship.105 "In tracing the social laws of nature," says he, "it seems evident, that man, by the frame of his moral constitution, is supposed to consider himself as standing in some degree of social relation to the whole species in general; and that this principle acts with more or less vigour, according to the distance at which he is placed with respect to any particular community or individual of his kind."
This principle of benevolence and sociability, which is not confined to one sect or to one state, but ranges excursive through the whole expanded theatre of men and nations, instead of being always acknowledged and always recommended, as it ought to have been, has been altogether omitted by some philosophers: by some, its existence seems to have been doubted or denied.
"Some sort of union," says Rutherforth, in his institutes of natural law,106 "there is between all nations: they are all included in the collective idea of mankind, and are frequently spoken of under this general name. But this is not a social union: the several parts of the collective idea, whether we consider the great body of mankind as made up of individuals or of nations, are not connected, as the several parts of a civil society are, by compact among themselves: the connexion is merely notional, and is only made by the mind, for its own convenience."
105. c. 5.
106. Vol. 2. 463. 464.
The very enlarged active power, concerning which I speak, is, to this day, so far as I know, without an appropriated name. The term philanthropy approaches near, but does not reach it. We sometimes call it patriotism, by a figurative extension of that term, which, in its proper meaning, denotes a circle of benevolence limited by the state, of which one is a member. When we speak of the most exalted of all characters, of the man who possesses this virtue, we generally describe him, by a metaphor, a "citizen of the world." A "man of the world," which would be the more natural expression, though it is in common use, is used to convey a very different idea.
If the general observations, which I have before made concerning the nature, the structure, and the evidence of language, be well founded, the particular remarks I have now made will appear to be striking and just.
This power of moral abstraction should be exercised and cultivated with the highest degree of attention and zeal. It is as necessary to the progress of exalted virtue, as the power of intellectual abstraction is to the progress of extensive knowledge. The progress of the former will be accompanied with a degree of pleasure, of utility, and of excellence, far superiour to any degree of those qualities, which can accompany the latter. The purest pleasures of mathematical learning spring from the source of accurate and extended intellectual abstraction. But those pleasures, pure as they are, must yield the palm to those, which arise from abstraction of the moral kind.
By this power, exerted in different proportions, the commonwealth of Pennsylvania, the empire of the United States, the civilized and commercial part of the world, the inhabitants of the whole earth, become objects of a benevolence the warmest, and of a spirit the most patriotick; for custom, the arbitress of language, has not yet authorized a more appropriate epithet. By this power, a number of individuals, who, considered separately, may be so minute, so unknown, or so distant, as to elude the operations of our benevolence, yet, comprehended under one important and distinguished aspect, may become a general and complex object, which will warm and dilate the soul. By this power the capacity of our nature is enlarged; men, otherwise invisible, are rendered conspicuous; and become known to the heart as well as to the understanding.
This enlarged and elevated virtue ought to be cultivated by nations with peculiar assiduity and ardour. The sphere of exertion, to which an individual is confined, is frequently narrow, however enlarged his disposition may be. But the sphere, to the extent of which a state may exert herself, is often comparatively boundless. By exhibiting a glorious example in her constitution, in her laws, in the administration of her constitution and laws, she may diffuse reformation, she may diffuse instruction, she may diffuse happiness over this whole terrestrial globe. How often and how fatally are expressions and sentiments perverted!
How often and how fatally is perverted conduct the unavoidable and inveterate effect of perverted sentiment and expression! What immense treasures have been exhausted, what oceans of human blood have been shed, in France and England, by force of the expression "natural enemy!" 'Tis an unnatural expression. The antithesis is truly in the thought: for natural enmity forms no title in the genuine law of nations, part of the law of nature. It is adopted from a spurious code.
The foregoing rules and maxims of national law, though they are the sacred, the inviolable, and the exalted precepts of nature, and of nature's Author, have been long unknown and unacknowledged among nations. Even where they have been known and acknowledged, their calm still voice has been drowned by the solicitations of interest, the clamours of ambition, and the thunder of war. Many of the ancient nations conceived themselves to be under no obligations whatever to other states or the citizens of other states, unless they could produce in their favour a connexion formed and cemented by a treaty of amity.
At last, however, the voice of nature, intelligible and persuasive, has been heard by nations that are civilized: at last it is acknowledged that mankind are all brothers the happy time is, we hope, approaching, when the acknowledgment will be substantiated by a uniform corresponding conduct.
How beautiful and energetick are the sentiments of Cicero on this subject. "It is more consonant to nature," that is, as he said a little before, to the law of nations, "to undertake the greatest labours, and to undergo the severest trouble, for the preservation and advantage of all nations, if such a thing could be accomplished, than to live in solitary repose, not only without pain, but surrounded with all the allurements of pleasure and wealth. Every one of a good and great mind, would prefer the first greatly before the second situation in life." "It is highly absurd to say, as some have said, that no one ought to injure a parent or a brother, for the sake of his own advantage; but that another rule may be observed concerning the rest of the citizens: such persons determine that there is no law, no bonds of society among the citizens, for the common benefit of the commonwealth. This sentiment tends to dissolve the union of the state. Others, again, admit that a social regard is to be paid to the citizens, but deny that this regard ought to be extended in favour of foreigners: such persons would destroy the common society of the human race; and if this common society were destroyed, the destruction would involve, in it, the fate also of beneficence, liberality, goodness, justice. Which last virtue is the mistress and the queen of all the other virtues."107 By justice here, Cicero clearly means that universal justice, which is the complete accomplishment of the law of nature.
107. Cic. de off. l. 3. c. 5, 6.
It has been already observed, that there is one part of the law of nations, called their voluntary law, which is founded on the principle of consent: of this part, publick compacts and customs received and observed by civilized states form the most considerable articles.
Publick compacts are divided into two kinds ― treaties and sponsions. Treaties are made by those who are empowered, by the constitution of a state, to represent it in its transactions with other nations. Sponsions are made by an inferiour magistrate or officer, on behalf of the state, but without authority from it. Such compacts, therefore, do not bind the state, unless it confirms them after they are made. These take place chiefly in negotiations and transactions between commanding officers, during a war.
Though the power of making treaties is usually, it is not necessarily annexed to sovereign power. Some of the princes and free cities of Germany, though they hold of the emperour and the empire, have nevertheless the right of making treaties with foreign nations: this right, as well as several other rights of sovereignty, the constitution of the empire has secured to them.
With a policy, wiser and more profound, because it shuts the door against foreign intrigues with the members of the union, no state comprehended within our national government, can enter into any treaty, alliance, or confederation.108
It is in the constitution or fundamental laws of every nation, that we must search, in order to discover what power it is, which has sufficient authority to contract, with validity, in the name of the state.
A treaty is valid, if there has been no essential defect in the manner, in which it has been made; and, in order to guard against essential defects, it is only necessary that there be sufficient power in the contracting parties, that their mutual consent be given, and that that consent be properly declared.
108. Cons. U. S. art. 1. s. 10.
It is a truth certain in the law of nature, that he who has made a promise to another, has given to that other a perfect right to demand the performance of the promise. Nations and the representatives of nations, therefore, ought to preserve inviolably their treaties and engagements: by not preserving them, they subject themselves to all the consequences of violating the perfect right of those, to whom they were made. This great truth is generally acknowledged; but too frequently an irreligious disregard is shown to it in the conduct of princes and states. But such a disregard is weak as well as wicked. In publick as in private life, among sovereigns as among individuals, honesty is the best policy, as well as the soundest morality. Among merchants, credit is wealth; among states and princes, good faith is both respectability and power.
A state, which violates the sacred faith of treaties, violates not only the voluntary, but also the natural and necessary law of nations; for we have seen that, by the law of nature, the fulfilment of promises is a duty as much incumbent upon states as upon men. Indeed it is more incumbent on the former than on the latter; for the consequences both of performing and of violating the engagements of the former, are generally more important and more lasting, than any which can flow from engagements performed or violated by individuals. Hence the strict propriety, as well as the uncommon beauty of the sentiment ― that if good faith were banished from every other place, she should find an inviolable sanctuary at least in the bosoms of princes.
Every treaty should be illuminated by perspicuity and candour. A tricking minister is, in real infamy, degraded as much below a vulgar cheat, as the dignity of states is raised above that of private persons. Ability and address in negotiation may be used to avoid, never to accomplish a surprise.
Fraud in the subsequent interpretation, is equally base and dishonourable as fraud in the original structure of treaties. In the scale of turpitude, it weighs equally with the most flagrant and notorious perfidy.
Treaties and alliances are either personal or real. The first relate only to the contracting parties, and expire with those who contract. The second relate to the state, in whose name and by whose authority the contract was made, and are permanent as the state itself, unless they determine, at another period, by their own limitation.
Every treaty or alliance made with a commonwealth is, in its own nature, real; for it has reference solely to the body of the state. When a free people make an engagement, it is the nation which contracts. Its stipulations depend not on the lives of those, who have been the instruments in forming the treaty: nor even on the lives of those citizens, who were alive when the treaty was formed. They change; but the commonwealth continues the same.
Hence the stability and the security of treaties made with commonwealths. By the faithful observance of their treaties, the Cantons of Switzerland have rendered themselves respectable and respected over all Europe. Let it be mentioned to the honour of the parliament of Great Britain, that it has frequently thanked its king for his zeal and attachment to the treaties, in which he has engaged the nation.
The corruption of the best things and institutions, however, always degenerates into the worst. The citizens of Carthage prostituted the character of their republick to such a degree, that, if we may believe the testimony of an enemy, Punica fides became proverbial, over the ancient world, to denote the extreme of perfidy.
As the United States have surpassed others, even other commonwealths, in the excellence of their constitution and government; it is reasonably to be hoped, that they will surpass them, likewise, in the stability of their laws, and in their fidelity to their engagements.
In the great chart of the globe of credit, we hope to see American placed as the very antipode of Carthaginian faith.
CHAPTER V.
OF MUNICIPAL LAW.
I NOW proceed to the consideration of municipal law ― that rule, by which a state or nation is governed. It is thus defined by the learned Author of the Commentaries on the Laws of England. "A rule of civil conduct, prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong."109 In my observations upon Sir William Blackstone's definition of law in general, I did him the justice to mention, that he was not the first, and that he has not been the last, who has defined law upon the same principles, or upon principles similar, and equally dangerous. Here it is my duty to mention, and, in one respect, I am happy in mentioning, that he was the first, though, I must add, he has not been the last, who has defined municipal law, as applied to the law of England, upon principles, to which I must beg leave to assign the epithets, dangerous and unsound. It is of high import to the liberties of the United States, that the seeds of despotism be not permitted to lurk at the roots of our municipal law. If they shall be suffered to remain there, they will, at some period or another, spring up and produce abundance of pestiferous fruit. Let us, therefore, examine, fully and minutely, the extent, the grounds, the derivation, and the consequences of the abovementioned definition.
109. 1. Bl. Com. 44.
"Legislature," we are told, "is the greatest act of superiority, that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are, indeed, convertible terms; one cannot subsist without the other."110 "There must be in every government, however it began, or by whatsoever right it subsists, a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty reside." "By sovereign power is meant the making of laws; for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration, by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end."111 "In the British parliament, is lodged the sovereignty of the British constitution."112 "The power of making laws constitutes the supreme authority."113 "In the British parliament," therefore, which is the legislative power, "the supreme and absolute authority of the state is vested."114 "This is the place, where that absolute despotick power, which must, in all governments, reside somewhere, is intrusted by the constitution of these kingdoms." "Its power and jurisdiction is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds."115 "It can change and create afresh even the constitution of the kingdom and of parliaments themselves. It can, in short, do every thing that is not naturally impossible." "What the parliament doth, no authority upon earth can undo."116 "So long as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control."117 "Hence the known apothegm of the great Lord Treasurer Burleigh, that England could never be ruined but by a parliament."118
110. 1. Bl. Com. 46.
111. Id. 48. 49.
112. Id. 51.
113. Id.52.
It is obvious, that though this definition of municipal law, and this account of legislative authority be applied particularly to the law of England and the legislature of Great Britain; yet they are, in their terms and in their meaning, extended to every other state or nation whatever ― "to every government, however it began, or by whatever right it subsists." Indeed, the opinion of Mr. Locke and other writers, "that there remains still inherent in the people a supreme power to remove and alter the legislature," is considered to be so merely theoretical, that "we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing."119
114. 1. Bl. Com.147.
115. Id. 160.
116. Id. 161.
117. Id. 162.
118. Id. 161.
119. Id. 161.
The doctrines contained in the foregoing quotations from the Commentaries on the laws of England, may be comprised under the two general propositions, which follow. 1. That in every state, there is and must be a supreme, irresistible, absolute, uncontrolled authority, in which the rights of sovereignty reside. 2. That this authority, and these rights of sovereignty must reside in the legislature; because "sovereignty and legislature are convertible terms," and because "it is requisite to the very essence of a law, that it be made by the supreme power." In the first general proposition, I have the pleasure of agreeing entirely with Sir William Blackstone. Its truth rests on this broad and fundamental principle ― that, by the constitutions of nature, men and nations are equal and free. In the second general proposition, I am under the necessity of differing altogether from the learned Author of the Commentaries. I differ from him, not only in the opinion, that the foregoing chain of reasoning must be applicable to every government and to every system of municipal law; I differ from him likewise in the opinion, that the foregoing chain of reasoning can be justly applied even to the government of Great Britain and to the municipal law of England. I think I can safely pledge myself to show, that, in both, I differ from him on the most solid and satisfactory grounds.
It deserves to he remarked, that, for his definition of municipal law, he cites the authority of no English court, nor of any English preceding writer, lawyer, or judge. Indeed, so far as I know, he could cite no such authority. So far as I have examined the English law books and authorities, upon this important subject ― and I have examined them, as it has been my duty to do, with no small degree of attention ― this definition stands entirely unsupported in point of authority. I may, however, be mistaken ― I pretend not to have read, far less to remember, every thing in the law. If I am mistaken, I will thank the friendly monitor, that will advise me of the mistake. As at present advised, I can say, that, so far as I know, this definition is unsupported by authority in the English law. I shall hereafter have occasion to show that, concerning acts of parliament, to which the definition is particularly applied, our law authorities hold, and even parliament itself holds, a very different language.
The introduction of the principle of superiority into the definition of law in general, we traced, when we examined that subject, from Sir William Blackstone to Baron Puffendorff. The introduction of the same principle into the definition of municipal law, can be traced to the same source. "Human laws," says he, "are nothing else, but the decrees of the supreme power, concerning matters to be observed by the subjects."120 The celebrated Heineccius, in his system of Universal Law, gives a definition much to the same purpose ― "Civil laws," says he, "are the commands of the supreme power in a state."121 Why was this principle transplanted into the law of England?
120. Puff. 688. b. 7. c. 6. s. 3.
121. 2. Hein. s. 150. p. 152.
It deserves to be further remarked, that, for all the strong sentiments and expressions concerning the necessary connexion, and indeed the convertibility of the sovereign and the legislative powers, no authority is produced from the English law; and ― I speak under the guard as before ― so far as I know, none could be produced, except in one instance, of which I shall soon take notice. The observation, which I have already made with regard to the definition of municipal law, may, therefore, be applied, with equal propriety, to the necessary connexion between the sovereign and the legislative powers. This connexion is not attempted to be supported by authority in the English law. I excepted one instance. It is this ― "The power and jurisdiction of parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds."122 For this, the authority of my Lord Coke in his fourth Institute is quoted. I have examined the passage. It stands thus. "Of the power and jurisdiction of the parliament, for making of laws in proceeding by bill, it is so transcendent and absolute, as it cannot be confined, either for causes or persons, within any bounds."123 From this authority, I think it may be fairly and justly inferred ― that, by the British constitution, the legislative authority of that nation is, without any exception of causes or persons, vested in the British parliament. In the same manner, by the constitution of Pennsylvania, the legislative power of this commonwealth is vested in a general assembly. But can it be inferred from this authority, that the sovereign power of Great Britain is vested in her parliament? Can it be inferred from the constitution of Pennsylvania, that her sovereign power is vested in her general assembly? I think, therefore, I may now venture to say, that both in his definition of municipal law, and in his opinion concerning the convertibility of the legislative and the sovereign authority, Sir William Blackstone stands unsupported by authority. Is he supported by reason and by principle? By neither, in my humble opinion.
122. 1. Bl. Com. 160.
123. 4. Ins. 36.
The discussion of this question necessarily leads me to consider the establishment of government, and the division of its powers. That this subject may be fully understood, ― for, in the United States, it ought to be understood fully ― I shall examine the sentiments, which have been generally entertained and received concerning it, and then compare those sentiments with what I consider as the true state of things. No sooner is government mentioned, than the fine flattering images of power, dominion, and sovereignty dance in the fancy, as the beautiful and magnificent effects of its establishment. But the truth is, that sovereignty, dominion, and power are the parents, not the offspring of government. Let us, however, see what has been thought, and what ought to be thought, concerning those splendid objects.
The theory of the establishment of government has been generally such as I am about to explain.
It has been supposed, that, if a multitude of people, who had formerly lived independent of each other, wished to unite in a political society, and to establish a. government, they would find it necessary to take the following steps. 1. Each individual would engage with all the others to join in one body, and to manage, with their joint powers and wills, whatever should regard their common preservation, security, and happiness. In consideration of this engagement, made by each individual with all the others, all those others would engage with each individual to protect and defend him from injury, and to secure him in the prosecution of every just and laudable pursuit. These reciprocal engagements from each individual to all the others, and from all the others to each individual form the political association. Those who do not enter into them are not considered as a part of the society.
The society being formed, some measures must be taken in order to regulate its operations; otherwise it could never adopt or pursue a system of measures for promoting, jointly and effectually, the publick security and happiness. These measures involve the formation of government.
A third step, we are told, must also he taken, before government can be completed. In addition to the engagement of political association, another engagement must be made: to that engagement, there must be a new party. What he is ― whence he comes ― from what source his equal and independent powers of contracting originate, have never, to this moment, been explained. Such an account of him as I have received, I will give if it is not satisfactory, you must not blame me. "This party is one or more persons, on whom the supreme authority is conferred," says one.124 By another, we are told, that this party is one or more persons, on whom "the sovereignty is conferred."125 The sovereignty or supreme authority! How has it started up all of a sudden? Why does it make its first appearance in a derivative state? Where do we find it originally? ― for it must exist originally before it can be conferred. To these questions we receive no explicit answer. We are told at one time, that "there are, in each individual, the seeds, as it were, of the supreme power."126 We are told, more cautiously, at another time, that the voluntary consent and subjection of the respective members of the society, is the "nearest and immediate cause, from which sovereign authority, as a moral quality, results."127 But, to make the most of these different pieces of information, let us suppose that this cause will produce its proper effects; that these seeds will yield, in due time, their natural fruits; and that this conferred sovereignty existed originally in those who conferred it. What is this sovereignty? Is it divisible or indivisible? Was the whole or only a part of it conferred? Was it conferred unconditionally, or upon certain conditions? Was it conferred gratuitously, or for a valuable consideration? Why hear we nothing concerning these important steps, which, upon the opinion generally received, must have been taken previously to the complete formation of a government? This, I confess, is far from being satisfactory: let us, however, take it as it is; and proceed to the remaining step, which, we are told, is taken for the complete establishment of government. This is an engagement by those, who are to be the future governours, that they will consult most carefully and act most honestly for the common security and happiness; and a reciprocal engagement by those, who are, in future, to be governed, that they will observe fidelity and allegiance to those invested with the sovereign authority.
124. 2. Burl. 28.
125. Puff, 640. b. 7. c, 2. s. 8.
It is admitted not to be probable, that, in the formation of the several governments, these three steps have been actually and regularly taken; yet, we are told, in every just institution of power, there must have been such transactions as implicitly contain the full force and import of all of them.128
126. 2. Burl. 42.
127. Puff. 654. b. 7. c. 3. s. 1.
That the two first steps have been sometimes taken, and must be always supposed, in the regular structure of a government, I readily agree; because it is not easy to discover how a government could be formed without them. But with regard to the third, I see no necessity for it: I see no propriety in it: it is derogatory, in my humble judgment, from the genuine principles of legitimate sovereignty, and inconsistent with the best theory, and the best exercise too, of supreme power. But the full illustration of these dignified subjects is reserved for another place.
With regard, however, to the British constitution, we must allow the supposition, that a contract took place at its establishment. For this we have high political authority. A full assembly of the lords and commons, met in convention in the year 1688, declared that James the second had broke the original contract between the king and people.129 What the terms of that contract were, at what time it was made, and what duties it enjoined, have been subjects of dark and doubtful disputation. For this reason, as we are told by Sir William Blackstone, it was, after the revolution, judged proper to declare these duties expressly, and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raised, by weak and scrupulous minds, about the existence of such an original contract, they must now entirely cease; especially with regard to every prince, who has reigned since that revolution.130
128. 2. Hutch. 227.
129. 1. Bl. Com. 211, 212.
130. Id. 233.
But, after all, what will this prove with regard to the supreme power of parliament? Do we hear, in the British constitution, of any contract between them and the people? How came they to be invested with such immense authority? The usual theories of government support no hypothesis of this kind, even in favour of the British legislature; far less, in favour of the legislature of every other government, "however formed, or by whatever right subsisting."
Let us trace this matter a little farther: let us endeavour to form some just conceptions concerning this supreme and sovereign power, concerning which so much has been said, and concerning which so little has been said justly. Let us turn our eyes, for a while, from books and systems: let us fix them upon men and things. While those, who were about to form a society, continued separate and independent men, they possessed separate and independent powers and rights. When the society was formed, it possessed jointly all the previously separate and independent powers and rights of individuals who formed it, and all the other powers and rights, which result from the social union. The aggregate of these powers and these rights composes the sovereignty of the society or nation. In the society or nation this sovereignty originally exists. For whose benefit does it exist? For the benefit of the society or nation. Is it necessary for the benefit of the society or nation, that, the moment it exists, it should be transferred? ― This question ought, undoubtedly, to be seriously considered, and, on the most solid grounds, to be resolved in the affirmative, before the transfer is made. Has this ever been done? Has it ever been evinced, by unanswerable arguments, that it is necessary to the benefit of a society to transfer all those rights and powers, and the results of all those rights and powers, which the members once possessed separately, but which the society now possess jointly? I think such a position has never been evinced to be true. Those powers and rights were, I think, collected to he exercised and enjoyed, not to be alienated and lost. All these powers and rights, indeed, cannot, in a numerous and extended society, be exercised personally; but they may be exercised by representation. One of those powers and rights is to make laws for the government of the nation. This power and right may be delegated for a certain period, on certain conditions, under certain limitations, and to a certain number of persons. I ask ― Is it necessary that, along with this power and this right, all the other powers and rights of the nation should be delegated to the same persons? I ask farther ― is it necessary, that all those other powers and rights should be delegated without any right of resumption? ― Another of those powers and rights is that of carrying the laws into execution. May not the society delegate this right for another period, on other conditions, with other limitations, and to other persons? A third right and power of the society is that of administering justice under the laws. May not this right be delegated for still another period, on still other conditions, under still other limitations, and to still other persons? Or may not this power and right be partly delegated and partly retained in personal exercise? For, in the most extended communities, an important part of the administration of justice may be discharged by the people themselves. All this certainly may be done. All this certainly has been done, as I shall have the pleasure of showing, when I come to examine the American governments, and to point out, by an enumeration and comparison of particulars, how beautifully, how regularly, and how usefully we have established, by our practice in this country, principles concerning the reservation, the distribution, the arrangement, the direction, and the uses of publick authority, of which even the just theory is still unknown in other nations.
Let us now pause and reflect. After what we see can be done, after what we see has been done, in the delegation and distribution of the rights and powers of society; can we subscribe to the doctrine of the Commentaries ― that the authority, which is legislative must be supreme? Can we consent, that this doctrine should form a first principle in our system of municipal law? Certainly not. This definition is not calculated for the meridian of the United States.
I go farther ― It is not calculated for the meridian of Great Britain. In order to show this, as it ought to be shown, it will be necessary to enter into a disquisition concerning the component parts and powers of the British parliament, and the origin, kinds, and properties of the English municipal law; the greatest and best proportion of which was never made by a parliament at all.
The British parliament consists of three distinct branches; the king, the house of lords, and the house of commons. To that species of English law, which is called a statute, the assent of all the three branches is necessary. When it has received the assent of all the three, it becomes a law and is obligatory upon the nation; but it is obligatory upon different parts of it for different reasons. "An act of parliament," says my Lord Hale, "is made, as it were, a tripartite indenture, between the king, the lords, and commons; for without the concurrent consent of all those three parts of the legislature, no such law is or can be made."131 What is an indenture? The Commentaries will tell us, that it is a species of deed, to which there are more parties than one.132 What is the first requisite of a deed? The Commentaries will also tell us, "that there be persons able to contract, and be contracted with."133 If a deed is a contract or agreement; if an indenture is a species of deed, to which there are more parties than one; if an act of parliament may be called an indenture tripartite, because there are three parties to it ― the king, the lords, and the commons; we find, that an act, which, considered indistinctly and dignified by the name of law, requires the whole supreme power of the nation to give it birth, is, when viewed more closely and analyzed into the component parts of its authority, properly arranged under the class of contracts. It is a contract, to which there are three parties; those, who constitute one of the three parties, not acting even in publick characters. A peer represents no one; he votes for himself; and when he is absent, he may transfer his right of voting to another. This may be thought a very free way of treating what is represented as necessarily an emanation of sovereign authority; but it is treating it truly; and give me leave to add, it is treating it accurately. Besides; I shall not be ashamed of treading in a path, though even a foot path, to which I am directed by the finger of the enlightened Lord Hale. That path, to which he points, will lead to instruction. Let us pursue it ― To this indenture there are three parties: to an indenture the power of contracting in each of the parties is necessary. What is the power of contracting in the different parts? The king contracts for himself, and as representing the executive authority of the nation. The peers engage in their private and personal rights. That members of the house of commons bind themselves and those whom they represent. They represent, or are supposed ― how justly is immaterial to our present argument ― to represent "all the commons of the whole realm."134 We all know, that one may execute an instrument, either in person, or by an attorney: we all know that an instrument may be executed by a person in his own right and as attorney also. Perhaps it would not be improper if, on some occasions at least, the forms, as well as the principles, of private, were copied into publick, transactions. Permit me to mention an instance, in which this was lately done. In the ratification of the constitution of the United States by the convention of Pennsylvania, the distinct characters, in which the members of that convention acted, are distinctly marked. "We the delegates of the people of the commonwealth of Pennsylvania, in general convention assembled, do, in the name and by the authority of the same people, and for ourselves, assent to and ratify the foregoing constitution for the United States of America."
131. Hale's Hist. 2
132. 2. Bl. Com. 295.
133. Id. 296.
134. 4. Ins. 1.
The foregoing, though a very familiar, must, I think, be admitted to be a very intelligible and satisfactory illustration and analysis of the manner, in which acts of parliament are made and become obligatory. For my own part, I cannot conceive how the truth, or the real dignity of a subject, can suffer by being closely inspected. When the exclamation ― procul este ― is made, I am led to suspect, that a secret conscious want of dignity or integrity is the cause. The plain and simple analysis, which I have given, of the nature and obligation of acts of parliament is evidently countenanced by the expressive legal language of my Lord Hale ― It is supported and confirmed by the very respectable authority of my Lord Hardwicke. "The binding force ― " I use his very words, as they are reported ― "the binding force of these acts of parliament arises from that prerogative, which is in the king, as our sovereign liege lord; from that personal right, which is inherent in the peers and lords of parliament to bind themselves and their heirs and successours in their honours and dignities; and from the delegated power vested in the commons, as the representatives of the people; and, therefore, Lord Coke says, 4. Inst. 1. these represent the whole commons of the realm, and are trusted for them. By reason of this representation, every man is said to be a party to, and the consent of every subject is involved in, an act of parliament."135 "Every man in England," says the Author of the Commentaries himself, "is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives."136 What is there in all this, that necessarily implies the irresistible energy of power, which is sovereign and supreme, without limits and without control?
We have already seen all the parties to an act of parliament. Let us, again, take a deliberate and distinct view of them: where shall we find the sovereign and supreme power? In the king? It is true, that he is called by my Lord Hardwicke "sovereign liege lord," and that his prerogative, as such, is assigned, and with much propriety, as one of the sources, from which "the binding force of acts of parliament arises." The legal and constitutional import of the expressions, sovereign liege lord, is well known. They present the king to his subjects as the object of their allegiance: they present him to foreigners as exercising the whole authority of the nation in foreign transactions. To foreign transactions, the British parliament is no party: to foreign nations, the British parliament is totally unknown. Alliances, treaties of peace, even declarations of war, are made in the name, and by the constitutional authority, of the king alone. But, it has never been pretended, that the prerogative of the king, as sovereign liege lord, extended so far as to bind his subjects by his laws. Even Henry the eighth, tyrant as he was, knew that an act of parliament was necessary, if even that could he sufficient, to endow his proclamations with legal obligatory force. But the king, by assenting to an act of parliament, can bind himself; and he can bind all that portion of the sovereign power of the nation, which is intrusted to his management and care. And it is certainly proper, that, as he represents the executive and the foreign powers of the nation, he should be consulted in the making of the national laws. From this short and clear deduction, we evidently see, that the absolute, uncontrolled power, mentioned by Sir William Blackstone as inseparable from legislative authority, is not to be found in the king. Is it to be found in the house of lords? That will not be pretended. Their votes bind not a single person in the nation, except themselves and the heirs and successours of their honours and dignities. Let us go to the house of commons: is this supreme power, which elsewhere we have searched for in vain, to be found among the members of this house? In what character? In their own right? This will not be alleged. As representatives? As representatives, they act, not by their own power, but by the power of those whom they represent. This power, therefore, whatever it is, cannot be found among the members of the house of commons, it must be looked for among their constituents. There, indeed, we shall find it: and the moment we find it, we shall discover its nature and extent. The king and the commons assembled in parliament are invested by the whole nation, except the house of lords, who act in their own right, not with "transcendent and absolute power and jurisdiction" generally, as one would naturally conclude from the unqualified expressions of Sir William Blackstone; but with this "transcendent and absolute power and jurisdiction for the making of laws," as we find in the determinate language of my Lord Coke. To the making of laws, this power and jurisdiction of the British parliament is strictly and rigidly confined. A single law the British parliament cannot execute: in a single cause, the British parliament cannot administer justice. Why then should "absolute despotick power," to use the language of the Commentaries, be ascribed to the British parliament? Has this doctrine a solid foundation? I presume it has not. But though it has not a solid foundation, it has produced, as I shall hereafter show, the most pernicious effects. I will acknowledge freely, that the bounds, which circumscribe the authority of the British parliament, are not sufficiently accurate: I will acknowledge farther, that they are not sufficiently strong. But can this suggest a reason or a motive for denying their existence? It strongly suggests, indeed, reasons and motives of a very different kind. It suggests the strongest reasons and motives for circumscribing the authority of the British parliament by limits more accurate, for fortifying those limits with an additional degree of strength, and for rendering the practice more conformable than it now is, to the theory of its institution ― for rendering the house of commons in fact, what it is presumed to be in law, "a representation of all the commons of the whole realm." If any thing coming from this chair could be supposed, by possibility, to produce the smallest effect in that nation, I would warmly recommend to it the accomplishment of those great objects, as consummations most devoutly to be wished. The maxim of the great Lord Burleigh has prevailed long enough: let it make way for a better. Instead of saying, that "England can never be ruined but by a parliament; " let it be said, and truly said, that "England can never be ruined but by herself."
135. 2. Atk. 654.
136. 1. Bl. Com. 185.
The learned Author of the Commentaries distinguishes between a law and a counsel; and also between a law and an agreement. I will examine the principle of these distinctions, in order that its strength or weakness may appear. It will be necessary to mention what is said in the Commentaries upon this subject. "Municipal law is called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge of the reasonableness or unreasonableness of the thing advised: whereas our obedience to the law depends not upon our approbation, but upon the maker's will. Counsel is only matter of persuasion; law is matter of injunction: counsel acts only upon the willing; law upon the unwilling also.
"It is also called a rule, to distinguish it from a compact or agreement: for a compact is a promise proceeding from us; law is a command directed to us. The language of a compact is, 'I will, or will not, do this; ' that of a law is, 'thou shalt, or shalt not, do this.' It is true, that there is an obligation, which a compact carries with it, equal, in point of conscience, to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act, without ourselves determining or promising any thing at all."137
137. 1. Bl. Com. 44, 45.
The examination of the principle, which lies at the root of these distinctions, is an interesting subject indeed. If these distinctions can be supported, we may bid a last adieu to the maxim which I have always deemed of prime importance in the science of government and human laws ― a free people are governed by laws, of which they approve. Before we part from this darling position, let us, at least, cast behind us, a "longing, lingering look."
Upon these passages in the Commentaries, I make remarks similar to those, which I made upon the passages examined some time ago. No authority in the English law is adduced ― none, so far as I know, could be adduced to support them. These sentiments concerning law, as well as the definitions of municipal law, and law in general, may be traced to the performance of Baron Puffendorff. Let us see what this performance says. "Law differs from counsel in this, that by the latter a man" ― "has no proper power, so as to lay any direct obligation on another; but must leave it to his pleasure and choice whether he will follow the counsel or not." "But law, though it ought not to want its reasons, yet these reasons are not the cause why obedience is paid to it, but the power of the exacter, who, when he has signified his pleasure, lays an obligation on the subject to act in conformity to his decree." "We obey laws, not principally on account of the matter of them, but upon account of the legislator's will. And thus law is the injunction of him, who has a power over those, to whom he prescribes; but counsel comes from him, who has no such power." "Counsel is only given to those, who are willing to have it; but law reaches the unwilling."138
"Neither are those ancients accurate enough in their expressions, who frequently apply to laws the name of common agreements." "The points of distinction between a compact or covenant and a law, are obvious. For a compact is a promise, but a law is a command. In compacts, the form of speaking is, I will do so and so; but in laws, the form runs, do thou so, after an imperative manner. In compacts, since they depend, as to their original, on our will, we first determine what is to be done, before we are obliged to do it; but in laws, which suppose the power of others over us, we are, in the first place, obliged to act, and afterwards the manner of acting is determined. And, therefore, he is not bound by a compact, who did not freely tie himself by giving his consent: but we are, for this reason, obliged by a law; because we owed an antecedent obedience to its author."139
138. Puff. 58. 59. b. 1. c. 6. s. 1.
139. Puff. 59. b. 1. c. 6. s. 2.
You now see, that these distinctions between a law and an agreement, a law and a compact are adopted from Baron Puffendorff: whence he derived them, it is immaterial to inquire. But it is material to show, as I think I can do unanswerably, that these distinctions, if they could be supported, would overturn the beautiful temple of liberty from its very foundations. It is material also to show, as I think I can do unanswerably, that the fair temple of liberty stands unshaken and undefaced; and that the sole legitimate principle of obedience to human laws is human consent. This consent may be authenticated indifferent ways: in its different stages of existence, it may assume different names ― approbation ― ratification ― experience: but in all its different shapes ― under all its different appellations, it may easily be resolved into this proposition, simple, natural, and just ― All human laws should be founded on the consent of those, who obey them. This great principle I shall, in the course of these lectures, have occasion to follow in a thousand agreeable directions. My present business, while I examine the principles of municipal law as delivered in the Commentaries, is to apply them and the examination of them to the law of England. In that law, we shall find the stream of authority running, from the most early periods, uniform and strong in the direction of the principle of consent ― consent, given originally ― consent, given in the form of ratification ― and, what is most satisfactory of all, consent given after long, approved, and uninterrupted experience. This last, I think, is the principle of the common law. It is the most salutary principle of obedience to human laws, that ever was diffused among men. With such a Byzantium before him, is it not astonishing, indeed, that the attention ― must I say the attachment? ― of Sir William Blackstone should have been attracted towards a Chalcedon?140
140. 3. Gibbon. 6. 7. Tac. Ann. XII. 62.
The ancient coronation oath of the kings of England obliged them, to the utmost of their power, to cause those laws to be observed, "which the men of the people have made and chosen."141
Let us next pay the respect, which is due to the celebrated sentiment of the English Justinian, Edward the first. "Lex justissima, ut quod omnes tangit, ab omnibus approbetur." It is a most just law, that what affects all should be approved by all. This golden rule is, with great propriety, inserted in his summons to his parliament. The Lord Chancellor Fortescue, in his most excellent tractate concerning the English laws, informs his royal pupil, that the statutes of England are framed, not by the will of the prince, but by that and by the assent of the whole kingdom. "Angliæ statuta, nedum principis voluntate, sed et totius regni assensu, ipsa conduntur." And if a statute, though passed with the greatest caution and solemnity, should be found, on experience, not to reach those purposes, which were intended by its framers, it can soon be reformed; but not without the same assent of the peers and commonalty of the kingdom, from which it originally flowed." Et si statuta hæc, tanta solennitate et prudentia edita, efficaciæ tantæ, quantæ conditorum cupiebat intentio, non esse contingent, correcto reformari ipsa possunt; et non sine communitatis et procerum regni illius assensu, quali ipsa primitus emanarunt."142 "To an act of law, statute or common, every man," says Lord Chief Justice Vaughan, "is as much consenting, and more solemnly, than he is to his own private deed."143 Authorities to the same purpose might, without end, be heaped upon authorities from the law books. I forbear to trouble you with any more of them. Let us have recourse to what I may properly call a perpetually standing authority upon this very important subject ― the writ for choosing members of parliament. It commands the sheriff of each county to cause two knights, the most fit and discreet of the county, and two citizens from every city, and two burgesses from every borough within the county, to be chosen according to law ― "So that the said knights have full and sufficient power for themselves,144 and the commonalty of the said county, and the said citizens and burgesses for themselves and the commonalty145 of the said cities and boroughs, severally from them, to do and consent to those things, which, by the favour of God, shall happen to be ordained by the common council of the kingdom: so that for default of such power, or through improvident election of the said knights, citizens, or burgesses, the said affairs remain not undone."146 Can language be more explicit to show the principle, upon which acts of parliament must be made, and consequently the principle, upon which alone they ought to be obeyed? It is directed, that the members have full and sufficient powers for themselves, and for their constituents from their constituents. This is precisely according to the analysis, which we have already given of the power of parliament. Why are those powers necessary? To do and consent to those things, which shall be ordained by parliament. Those powers are absolutely necessary; for, without them, the business of the nation would remain undone. Is it possible, that any one, who has ever seen this venerable and authentick legal instrument, could suppose, that the sovereign power of the nation was vested in the parliament of Great Britain? Is it possible, that one who has seen this writ could forget the rock, from which the members were hewn, and the hole of the pit from which they were dug? The humble servants, who must come furnished with "full and sufficient power from" their masters "the commonalty of the county, and the burgesses and the citizens separately ― " "Divisim," one by one ― have those humble servants, when assembled together, the uncontrolled powers of the nation in their hands? When they are intrusted with the legislative, may they, therefore, assume also the executive and the judicial powers of their country?
141. 1. Bl. Com. 236, note. "que lez gentez du people avont faitez et esliez."
142. Fortes. c. 18.
143. Vaugh. 392.
144. It is the wisdom of the English law, that acts of parliament are equally binding to the makers of them as to the rest of the people. The makers are empowered for themselves, as well as for their constituents; and themselves, as well as their constituents must taste the sweet or bitter fruits of their own works. This suggests a powerful motive for caution and justice in their determinations. (2. Whitlocke 87.) But this doctrine ill agrees with the new and foreign theory, introduced into the Commentaries ― "A law always supposes some superiour, who is to make it." 1. Bl. Com. 43.
145. It is, a great trust reposed in members of parliament, to have the power of the whole commonalty of a county, or city, or borough conferred on them. The acts of the members are the acts of the commonalty, from whom they have their power, and who are bound by them. 2. Whitlocke 89.
146. 1. Whitlocke 2. 3.
We now see, in a very striking point of view, the strong and expressive import of the language of my Lord Hale, when he says, that an act of parliament is, as it were, a tripartite indenture, between the king, the lords, and the commons. They form three parties: each party has power to contract. The King contracts in his own right ― for the king is also a man and in consequence of the powers devolved on him by that original contract, long supposed, but, at the revolution of 1688, expressly recognized to have been made between him and the people. The lords of parliament contract solely in their own right. The members of the house of commons contract in their own right, for themselves, and in right of their constituents, for the commonalty of the whole realm. Thus we find every party and every power to form a contract, a compact, or an agreement ― for these terms are synonimous ― in the strictest and most proper sense of the words. The vital principle of every contract is the consent of the mind. My Lord Hale did not draw the obligatory principle of an act of parliament from a foreign fountain: he drew it, pure and clear, from its native springs.
Sir William Blackstone tells us, that the original of the obligation, which a compact carries with it, is different from that of a law. The original of the obligation of a compact we know to be consent: the original of the obligation of an act of parliament we have traced minutely to the very same source.
But acts of parliament are not the only ― let us add, they are not the principal ― species of law, known and obligatory in England. That kingdom boasts in the common law. In the countenance of that law, every lovely feature beams consent. This law is of vast importance. By it, the proceedings and decisions of courts of justice are regulated and directed. It guides the course of descents and successions to real estates, and limits their extent and qualifications: it appoints the forms and solemnities of acquiring, of securing, and of transferring property: it prescribes the manner and the obligation of contracts: it establishes the rules, by which contracts, wills, deeds, and even acts of parliament are interpreted.147 This law is founded on long and general custom. A custom, that has been long and generally observed, necessarily carries with it intrinsick evidence of consent. Caution and prudence are universally recommended in the introduction of new laws: can caution and prudence be so strongly exemplified ― can their fruits be so certainly reaped in any other laws, as in those that are established by custom? The prospect of convenience invites to the first experiment: a first experiment, successful, encourages to make a second. The successful experiments of one man or one body of men induce another man or another body of, men to venture upon similar trials. The instances are multiplied and extended, till, at length, the custom becomes universal and stablished. Can a law be made in a manner snore eligible? Experience, the faithful guide of life and business, attends it in its every step. Other laws demand to e taken upon trust: a good countenance is their only recommendation. Those, who introduce them, can only say, in their favour, that they look well. A customary law, with a modesty appropriate to conscious merit, asks for admittance only upon trial, and claims not to be considered as a part of the political family, till she can establish a character, founded on a long and intimate acquaintance. The same means, by which the character of one law is known and approved, are employed to try and discriminate the character of every other. In favour of every one that is recommended, it can be said, not only, that it has lived unexceptionably by itself, but also that it has lived in peace and harmony with all the others. In this manner, a system of approved and concording laws is gradually, though slowly, collected and formed. By a process of this kind, the immortal Newton collected, arranged, and formed his just and beautiful system of experimental philosophy. By the same kind of process, our predecessors and ancestors have collected, arranged, and formed a system of experimental law, equally just, equally beautiful, and, important as Newton's system is, far more important still. This system has stood the test of numerous ages: to every age it has disclosed new beauties and new truths. In improvement, it is yet progressive; and what has been said poetically on another occasion, may be said in the strictest form of asseveration on this, ― it acquires strength in its progress. From this system, we derive our dearest birthright and richest inheritance. The rise, the progress, the history, and the component parts of this invaluable system; its extension to America, and the principles of its establishment in the several states and in the national government, it will be my duty and my pleasure to trace and to exhibit in the course of these lectures. ply present business is, to ascertain the origin of its obligatory force. Surely, this may be done with ease. The common lacy is founded on long and general custom. On what can long and general custom be founded? Unquestionably, on nothing else, but free and voluntary consent. The regions of custom afford a most secure asylum from the operations of absolute, despotick power. To the cautious, circumspect, gradual, and tedious probation, which a law, originating from custom, must undergo, a law darted from compulsion will never submit.
147. Hale's Hist. 24.
"Sic volo, sic jubeo, stet pro ratione voluntas," is the motto of edicts, proclaimed, in thunder, by the voice of a human superiour. Far dissimilar are the sentiments expressed in calm and placid accents by a customary law. I never intruded upon you: I was invited upon trial: this trial has been had: you have long known me: you have long approved me: shall I now obtain an establishment in your family? A customary law carries with it the most unquestionable proofs of freedom in the country, which is happy enough to be the place of its abode.
Some truths are too plain to be proved. That a law, which has been established by long and general custom, must have received its origin and introduction from free and voluntary consent, is a position that must be evident to every one, who understands the force and meaning of the terms, in which it is expressed. My object is to imprint, as well as to prove, this great political doctrine. Perhaps this cannot he done better, than by laying before you the sentiments, which an English parliament held upon this subject, above two hundred years ago. You will see how strongly they support the principle ― that the obligation of human laws arises from consent. The sentiments were expressed on an occasion similar to one, which will still suggest matter of very interesting recollection to many minds ― They were expressed when an attempt was made to establish, in England, a foreign jurisdiction. With becoming indignation against it, the parliament declare ― "This realm is free from subjection to any man's laws, but only to such as have been devised, made, and obtained within this realm, for the wealth of the same, or to such as, by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, with their own consent to be used amongst them, and have bound themselves by long use and custom to the observance of the same, not as to the observance of Laws of any foreign prince, potentate, or prelate, but as to the customed and ancient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and customs, and none otherwise."148
Some writers, when they describe that usage, which is the foundation of common law, characterize it by the epithet immemorial. The parliamentary description is not so strong. "Long use and custom" is assigned as the criterion of law, "taken by the people at their free liberty, and by their own consent." And this criterion is surely sufficient to satisfy the principle: for consent is certainly proved by long, though it be not immemorial usage.
That consent is the probable principle of the common law, is admitted by the Author of the Commentaries himself. "It is one of the characteristick marks of English liberty," says he,149 "that our common law depends upon custom, which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people." I search not for contradictions: I wish to reconcile what is seemingly contradictory. But, if the common law could be introduced, as it is admitted it probably was, by the voluntary consent of the people; I confess I can not reconcile with this ― certainly a solid ― principle, the principle that "A law always supposes some superiour, who is to make it," nor another principle, that "sovereignty and legislature are indeed convertible terms."
148. St. 25. H. 8. c, 21. s. 1.
149. 1. Bl. Com. 74.
A power, far beneath the sovereign power, may be invested with legislative authority; and its laws may be as obligatory as any other human laws. Of this, instances occur even in the government of Great-Britain.
It is necessarily and inseparably incident to all Corporations, to make by-laws, or private statutes, for their government. These laws are binding upon themselves, unless contrary to the laws of the land, and then they are void.150 From these positions, we clearly infer, that laws, obligatory upon those for whom they are made, may be enacted by a power, so far from being absolute and supreme, that its laws are void, when contrary to those enacted by a superiour power: so far do sovereignty and legislature, in this instance at least, appear to be from convertible terms: so far is it from being requisite to the very essence of a law, that it be made by the supreme power. Sir William Blackstone, tells us, that in the provincial establishments in America, the assemblies had the power of making local ordinances; that subordinate powers of legislation subsisted in the proprietary governments; and that, in the charter governments, the assemblies made laws, suited to their own emergencies:151 and yet, in these instances, he certainly did not admit, that "by sovereign power is meant the making of laws."
150. 1. Bl. Com. 475.
151. 1. Bl. Com. 108.
I hope I have now shown, that the definition of municipal law in the Commentaries is not calculated even for the meridian of Great-Britain: it is still less calculated for that of many other governments: for, in many other governments, the distinction is still more strongly marked between the sovereign and legislative powers.
In the original constitution of Rome, the sovereign power, the dominium eminens, as it is called by the civilians, always resided in the collective body of the people. But the laws of Rome were not always made by that collective body. To the senate was indulged a privilege of legislation; partial and subordinate, it is true; but still a privilege of legislation. An act of the senate was not considered as a permanent law; but it was allowed to continue in force for one year; not longer, unless it was ratified by the people. To the plebeians, exclusive of the senators and patricians, a privilege of legislation was also indulged; but their laws bound only themselves. While we are taking notice of the different bodies, that possessed the power of legislation in Rome, it is proper to mention one very great defect, which existed in the constitution of that celebrated republick. A power, inferiour to that which made a law, could dispense with it. The senate, by its own decree, could dispense with a law, made by the whole collective body of the people. This power, dangerous in every free government, was often exercised, in Rome, to accomplish the most pernicious purposes.152
152. In the government of Media, an opposite extreme prevailed. When an edict was once published, it was not in the power of the legislator to alter or repeal it. The same power, which is sufficient to make, should be sufficient to abrogate a law. 3. Gog. Or. Laws. 11.
In the United States, and in each of the commonwealths, of which the union is composed, the legislative is very different from the supreme power. Instead of being uncontrollable, the legislative authority is placed, as it ought to be, under just and strict control. The effects of its extravagancies may be prevented, sometimes by the executive, sometimes by the judicial authority of the governments; sometimes even by a private citizen, and, at all times, by the superintending power of the people at large. These different points will afterwards receive a particular explication. At present, perhaps, this general position may be hazarded ― That whoever would be obliged to obey a constitutional law, is justified in refusing to obey an unconstitutional act of the legislature ― and that, when a question, even of this delicate nature, occurs, every one who is called to act, has a right to judge: he must, it is true, abide by the consequences of a wrong judgment.
Puffendorff, from whom the idea of a superiour, as forming a necessary ingredient in the idea of law, seems to have been transplanted into the Commentaries, insists much upon what he calls a maxim ― that a person cannot oblige himself; "and this maxim," he tells us, "is not confined to single men, but extends to whole bodies and societies:"153 "for a person to oblige himself under the notion of a lawgiver, or of a superiour, is an impossibility."154 Hence the inference seems to be drawn, that "obligations are laid on human minds by a superiour." To different minds, the same things, sometimes, appear in a very different manner. If I was to make a maxim upon this subject; it would be precisely the reverse of the maxim of Baron Puffendorff. Instead of saying, that a man cannot oblige himself; I would say, that no other person upon earth can oblige him, but that he certainly can oblige himself. Consent is the sole principle, on which any claim, in consequence of human authority, can be made upon one man by another. I say, in consequence of human authority; for, in consequence of the divine authority, numerous are the claims that we are reciprocally entitled to make, numerous are the duties, that we are reciprocally obliged to perform. But none of these can enter into the present question. We speak of authority merely human. Exclusively of the duties required by the law of nature, I can conceive of no claim, that one man can make upon another, but in consequence of his own consent. Let us, upon this occasion, as we have done upon some others, simplify the object by a plain and distinct analysis. Let us take for the subject of our analysis the very question we are upon ― Whether a man can be bound by any human authority, except his own consent? Let us suppose, that one demands obedience from me to a certain injunction, which he calls a law, by performing some service pointed out to me: I ask him, why am I obliged to obey it? He says it is just I should do it. Justice, I tell him, is a part of the law of nature; give me a reason drawn from human authority. He tells me, he had promised it. Very well, perform your promise. Suppose he rises in his tone, and tells me, he orders it. Equal and free, I see no reason for obeying the order of one, who is only equal and free. Repelled from this attack upon my independence, he assails me on a very different quarter; and, softening his accents, represents how generous, nay how humane, it would be, to do as he desires. Humanity is a duty; generosity is a virtue; but neither is to be referred to human authority. Let invention be put upon the rack, and the severest torture will not draw from it a discovery of any external human authority, by which I am obliged to obey the supposed law, or to perform the supposed service. He tells me, next, that I promised to do it. Now, indeed, I discover a human source of obligation. If I promised to do it, I am bound to do it; unless the promise is either unlawful, or discharged; dissolved by an equal, or prohibited by a superiour authority. But this promise originated from consent; for if it was the abortion of compulsion ― the effect sometimes of exterior and superiour human power, but never of human authority ― I am not bound to consider it as my act and deed.
153. Puff. 63. b. 1. c. 6. s. 7.
154. Id. 688. b. 7. c. 6. s. 3.
Let us now vary the supposition a little. Suppose this demand to be made upon me by one, of whose superiour judgment and unimpeached veracity I had the strongest and best founded belief: suppose me at that period of life ― for there is such a period of life ― when I should believe implicitly whatever was taught me by one, whom I knew I could so well trust: suppose this person, respected for his knowledge and integrity, should tell me, that he really thought it my duty to comply with the demand. I think I should probably feel a sense of obligation arise within me. But why? because this respectable person says it? No. But for a reason, which may be easily mistaken for this: because I believe, that what this respected person says must be true. Here, indeed, is a species of external human authority, exerted and obeyed for the wisest purposes: But this is very different from that external human authority, which is assigned by some as the source of obligation in human laws. This species of authority is said to have been carried to a very great height by Pythagoras, the celebrated philosopher. He delivered it as a maxim, and it was received as such in his school, that whatever he said must be true. Ipse dixit was an undisputed authority. But if folly and falsehood had been as inseparably associated with the character of Pythagoras, as veracity and wisdom were, in the minds of his followers, I ask ― would his ipse dixit have been received as an undisputed authority? I presume not. To recur, then, to the supposition, which I last made; I should feel the sense of obligation arise in me, not because I should think it his will; that I should comply with the demand; but because I should believe in his opinion, that it was my duty to do so. This refers to a very different source. For let me suppose a little farther, that, after feeling this sense of obligation arise within me, I should come to learn, either from my own observation, or from authority still superiour to that of the person in whom I placed confidence, that this confidence was misplaced; that what he told me proceeded either from mistake, or from something worse than mistake; his will might continue the same, and my opinion concerning it might continue the same, but my sense of obligation would be greatly altered. These remarks, I hope, will be sufficient to show, that no exterior human authority can bind a free and independent man.
The next question is ― can a man bind himself? Baron Puffendorff lays it down as a maxim, that he cannot and on this maxim, applied to publick bodies as well as private individuals, he builds a very interesting series of argumentation ― just, indeed, and unanswerable, if the basis, on which it rests, be solid and sound.
We have, at last, reached the bottom of the business. We are now come to the important question, the resolution of which must, in my opinion, decide the fate of all human laws. I say, in my opinion; for I have already given my reasons for thinking, that if a man cannot bind himself, no human authority can bind him. For one man, equal and free; cannot be bound by another, who is no more. The consequence necessarily is, that if a man can be bound by any human authority, it must be by himself. A farther consequence necessarily is, that if he cannot bind himself, there is an end of all human authority, and of all human laws. How differently, sometimes, things turn out, from what was expected from them! The idea of superiority, it was probably thought, would strengthen the obligation of human laws. When traced minutely and accurately, we find, that it would destroy their very existence. If no human law can be made without a superiour; no human law can ever be made.
First principles ought to be admitted with caution in, deed. When you first read, in the Commentaries, this principle ― "a law always supposes some superiour, who is to make it; " you did not suspect, I presume, that this principle is subversive of all human laws. You now perceive, that, if a man can be bound by human authority, it must be by his own. But is he his own superiour? The creative imagination of a Theobald himself could not suggest the fancy. He could only go so far as to say
"None but himself can be his parallel."
Even the master of a show, who boasted, that his elephant was "the greatest elephant in the world," thought it necessary, for preventing mistakes, to add ― except himself.
But to resume seriously the important question ― can a man bind himself? Simple facts have sometimes led to the greatest discoveries. The sublime theory of gravitation was first suggested to Newton by an apple falling from a tree.
At the end of the second volume of the Commentaries are precedents of some useful instruments, known to the law of England. Among others, there is a precedent of a common bond. In that bond, there are these words written ― I bind myself. This form of a bond has been known and used and approved in England from time immemorial. If a man cannot bind himself, then all the bonds, which have been executed in England, have been mere nullities. The substantial parts of that bond are parts of the common law of England. The part, which I have mentioned, is certainly a most substantial one. All parts of the precedent are not substantial: many of them may be omitted or altered without vitiating the force of the bond. The law does not require any particular form of words: but one thing it strictly requires ― such words as declare the intention of the party, and denote his being bound: such words will be sufficient: such words will be carried into effect by the judgment of the law.
Let us examine the obligatory principle of a bond by legal tests, by triers at the common law. Suppose one applies to a court of justice to enforce the obligation of a bond, and proposes it as the foundation of his demand. In what manner is he directed by the law to express the legal import of the instrument? He is directed to declare, that, by this instrument, the party who executed it, "acknowledged himself to be bound,"155 or "bound himself."156 The precedents are in both forms. When the action is properly instituted, the party, against whom it is instituted, is next called upon, with all legal solemnity, to make his defence ― for against no man ought a decision to be pronounced till he has an opportunity of being heard. He appears: the instrument is produced. What can he say, why a decision should not be pronounced against him? The common law furnishes hint with forms to suit almost every case, certainly every case that has been brought before a court of justice. If the case of the present defendant is so very peculiar, that nothing similar to it ever happened before; the common law will protect him in forming a defence, suited to his very peculiar case. Among all the different kinds of pleas, fitted for every case that has happened, for almost every case that can happen, are there any furnished, which bear towards this principle ― that the defendant could not oblige himself? There are. But they are furnished only for those, who, by reason of their infancy, or any other cause, appear to want a common degree of understanding. For without understanding it, no obligation can be legitimately formed. There are others too, that respect another situation, which it will be proper to examine particularly; because it is probable, that it will throw much light upon the principle of obligation to human laws. The understanding, though necessary, is not, of itself, sufficient to form a legitimate obligation: in a legitimate obligation, the will must concur; compulsion will not be received as a substitute for consent. The common law is a law of liberty. The defendant may plead, that he was compelled to execute the instrument.
155. Boh. Ins. Leg. 102.
156. 2. Mod. Ent. 178.
He cannot, indeed, deny the execution of it; but he can state, in his plea, the circumstances of compulsion attending its execution; 157 and these circumstances, if sufficient in law, and established in fact, will procure a decision in his favour, that, in such circumstances, he did not bind himself. If he never executed the instrument at all; he can state the fact; and unless the execution of it be proved against him, he will, upon this plea likewise, obtain a decision, that he did not bind himself. But if he can do none of these things ― if he executed the instrument; if he executed it voluntarily; if he executed it knowingly; the law will pronounce, that he bound himself. This has been the regular course of the law during time immemorial ― a course, uninterrupted and unrepealed In the municipal law of England, therefore, the doctrine is established ― that a man can bind himself. This doctrine is established by strict legal inference from the principles and the practice of the common law. The consequence is, that, on the principles of the municipal law of England, a superiour is not necessary to the existence of obligation. A man can bind himself. But is his bond a law? Yes, it is a law binding upon himself. Farther it ought not to bind. But shall a private contract be viewed in the venerable light of a law? Why not, if it has all its essential properties? Suppose this contract to have been made by millions, contracting on each side: it would have been dignified by the name of a treaty: as such, had the United States been the contractors on one side, it would have become a law of the land: as such, it would have become an important part of the law of nations. Is the act of millions more binding upon those millions, than the act of one is binding upon that one? Light will break in upon us by degrees.
157. 5. Rep. 119.
By the law of England, a man can bind himself. The law of England speaks not a language contrary to that of the law of nature. By this law also, a man can bind himself. "If among men," says Barbeyrac,158 "the immediate reason why one ought to be subject to the command of another is ordinarily this, that he has voluntarily consented to it" ― and we have shown, that this is not only ordinarily, but always the reason ― "then," continues he, "this consent, and all other engagements whatever are only obligatory through that maxim of natural law, which tells us, that every one ought to observe what he has engaged himself to." This maxim is, indeed, a part of the law of a superiour; but this maxim is founded upon the previous truth ― that a man can engage himself: I need not surely prove, that an engagement must be made before it can be observed. "That we should be faithful to our engagements," says the very learned President Goguet,159 "is one of those maxims, which derive their origin from those sentiments of equity and justice, which God has engraven on the hearts of all men: they are taught us by that internal light, which enables us to distinguish between right and wrong." The same important lesson is delivered to nations, as well as to men.160
We see now, that, both by the law of England, and by the superiour law of nature, men and nations can bind themselves. Can they be bound without their consent?
158. Puff. 67. n. 2. to b. 1. c. 6. s. 12.
159. 1. Gog. Or. Laws. 7, 8.
160. Vat. Pref. 12.
Is it necessary to dig for another foundation, on which the obligatory force of human laws can be laid? Can any other solid foundation be found?
That this foundation is sufficient to support the whole beautiful structure of human law, will abundantly appear.
"The union of families," says the same respectable author, whom I quoted just now, "could not have taken place but by an agreement of wills. When we view society as the effect of unanimous concord, it necessarily supposes certain covenants. These covenants imply conditions. These conditions are to be considered as the first laws."161 We have already seen the sentiments of the excellent Hooker ― that "human edicts, derived from any other human source, than the consent of those, upon whom they are imposed, are nothing better than mere tyranny. Laws they are not, because they have not the publick approbation."162 "The mother of civil law," says Grotius,163 "is that very obligation, which arises from consent." "So that the civil law," says his commentator, Barbeyrac,164 "is, at the bottom, no more than a consequence of that inviolable law of nature ― every man is obliged to a religious observance of his promise." "The legislative power of a civil society," says Dr. Rutherforth, in his Institutes of Natural Law,165 "is acquired by the immediate and direct consent of the several individuals, who make themselves members of such society. And the legislative body acquires it, as by the immediate and direct consent of the collective body of the society, so by the remote and indirect consent of the several members."
161. 1. Gag. Or. Laws. 7.
162. Hooker. b. 1. s. 10. p. 19. 20.
163. Pref. 20. s. 16.
164. Id. note to s. 16.
165. Vol. 2. 222.
I hope I have now performed my engagement: I hope I have evinced, from authority and from reason, from precedent and from principle, that consent is the sole obligatory principle of human government and human laws. To trace the varying but powerful energy of this animating principle through the formation and administration of every part of our beautiful system of government and law, will be a pleasing task in the course of these lectures. Can any task be more delightful than to pursue the circulation of liberty through every limb and member of the political body? This kind of anatomy has a peculiar advantage ― it traces, without destroying, the principle of life.
Before I conclude, it will be proper to take a concise view of the consequences, necessarily resulting from the doctrine, that the legislative power must be "absolute, uncontrolled, irresistible, and supreme." 1. The power, which makes the laws, cannot be accountable for its conduct; it cannot be submitted either to human judgment, or to human punishment. For both these, says Pufendorff,166 suppose a superiour; but a superiour to the supreme, in the same order of men, and the same notion of government, is a contradiction. 2. If to every human law, a superiour is necessary: and if the power, which makes a human law, must be supreme; the consequence unquestionably is, that that power cannot be bound by the laws, which it makes: for where shall we find a superiour to what is supreme? "When a civil power," says Puffendorff,167 "is constituted supreme, it must, on this very score, be supposed exempt from human laws; or, to speak more properly, above them. Human laws are nothing else but the decrees of the supreme power, concerning matters to be observed, by the subjects, for the publick good of the state. That no such edicts can directly oblige the sovereign is manifest; because his very name and title supposeth, that no bond or engagement can be laid on him by any other mortal hand and for a person to oblige himself, under the notion of a lawgiver, or of a superiour, is an impossibility." 3. If the legislative power be absolute, uncontrolled, and supreme; all opposition to its acts must be unlawful. This, indeed, is not so much a consequence, as a part of