ISBN 1-886363-16-1 (v. 1) ISBN 1-886363-15-3 (set)

Introduction Copyright© 1996 by Paul Finkelman and David Cobin

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Library of Congress Cataloging-in-Publication Data

Blackstone, William Sir, 1723-1780.

Blackstone's commentaries: with notes of reference to the constitution and laws, of the federal government of the United States, and of the Commonwealth of Virginia: in five volumes, with an appendix to each volume, containing short tracts upon such subjects as appeared necessary to form a connected view of the laws of Virginia as a member of the federal union / by St. George Tucker;

with an introduction by Paul Finkelman and David Cobin. p. cm.

Originally published: Philadelphia: William Young Birch, Abraham Small, 1803.

Includes bibliographical references.

ISBN 1-886363-15-3 (set: alk. paper)

1. Law—Great Britain. 2. Law—United States. 3. Law—Virginia. I. Tucker, St. George, 1752-1828. II. title. KF385.B55 1996 349.73-dc20

[347.3] 96-12566 CIP

BLACKSTONE'S COMMENTARIES:

WITH

NOTES OF REFERENCE,

TO

THE CONSTITUTION AND LAWS,

OF THE

FEDERAL GOVERNMENT OF THE UNITED STATES;

AND OF THE

COMMONWEALTH OF VIRGINIA.

IN FIVE VOLUMES.

WITH AN APPENDIX TO EACH VOLUME,

CONTAINING

SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED

VIEW OF THE LAWS OF VIRGINIA,

AS A MEMBER OF THE FEDERAL UNION.

BY ST. GEORGE TUCKER, PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARY, AND

ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.

PHILADELPHIA:

PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL, NO. 17, SOUTH SECOND-STREET. ROBERT CARR, PRINTER.

1803.

AN INTRODUCTION TO

ST. GEORGE TUCKER'S

BLACKSTONE'S COMMENTARIES

BY PAUL FINKELMAN AND DAVID COBIN

An Introduction to St. George Tucker's Blackstone's Commentaries

In 1803, St. George Tucker published a five-volume edition of William Blackstone's Commentaries on the Laws of England.1 Tucker's expanded and annotated edition of Blackstone quickly — and correctly — became known as the "American Blackstone." This was not, however, the first American printing of Blackstone. As early as 1771, Robert Bell of Philadelphia reprinted "page for page" the fourth edition of Blackstone that had been published in Oxford in 1770. This made the treatise, which was initially published in England between 1765 and 1769, more available in the American colonies. In 1790, the famous printer Isaiah Thomas published the "first Worcester edition" of Blackstone, which was simply a reprint of the tenth London edition. Thomas, in association with E.T. Andrews, brought out yet another printing of Blackstone in 1799. Published in Boston, they inaccurately called this the "2d American edition."2

These early American printings of Blackstone were significant because they made the great treatise available first in the colonies and later in the new nation. But all of these were simply reprints of Blackstone. They offered no commentary on Blackstone and did not indicate that the English commentaries might not be fully applicable to either the American colonies before the Revolution, or more significantly, to the new Constitutional Republic after 1787.3

Tucker remedied this with an entirely new edition, adding to Blackstone's work his own voluminous commentaries and annotations. Based on his law lectures at the College of William and Mary, Tucker's Blackstone explained how the American Revolution, the Virginia Constitution, the United States Constitution, and the Bill of Rights, altered English law in America. His discussion of the effect of the federal Constitution on American law was the first essay ever written on this subject.4 Tucker showed how Blackstone could be useful to American lawyers and law students, but only if they understood and made allowances for Blackstone's antidemocratic ideas and viewpoint.

For lawyers and legal scholars alike, Tucker's Blackstone remains a key source for understanding how Americans viewed English common law in the years following the adoption of the Constitution and the Bill of Rights. Moreover, his work offers significant insights into the understanding of the meaning of the Consti-

tution and the Bill of Rights at the time of their adoption. In The Founders' Constitution, for example, Professors Philip Kurland and Ralph Lerner use passages from volumes one and two of Tucker to help explain the meaning of freedom of speech, freedom of the press, and the right to petition. They also quote portions of Tucker to illustrate the contemporary meaning of the Second, Third, Fourth, and Tenth Amendments. In other volumes they cite Tucker to elucidate much of the rest of the Constitution.5

I Tucker and the First Amendment

Tucker, in fact, was the first American legal scholar to seriously consider the way in which the Constitution and, more importantly, the Bill of Rights, altered traditional notions of English law. Tucker's discussion of the meaning of the speech and press provisions of the First Amendment is central to the modern notion that the amendment is more than simply a protection against prior restraint or pre-publication censorship. Tucker notes that in England, which abolished prior restraint in 1694, freedom of the press meant "a permission to publish without previous restraint; and, therefore, that a law to restrain the licentiousness of the press, cannot be considered as an abridgement of its liberty."6 Blackstone believed this was the essence of freedom of the press. While Tucker agreed that in Britain that was certainly the case, he observes:

[T]his exposition of the liberty of the press, was only to be found in the theoretical writings of the commentators on the English government, where the liberty of the press rests upon no other ground, than that there is now no law which imposes any actual previous restraint upon the press, as was formerly the case....7

But that was not good enough for America, where freedom of expression:

is made a fundamental article of the constitutions, both of the federal and state governments, that no such restraint shall be imposed by the authority of either.... [And thus] nothing can be more explicit than the meaning and intention of the state of Virginia, at the moment of adopting the constitution of the United States; by which it will clearly appear that it never was the intention of that state (and probably of no other in the union) to permit congress to distinguish between the liberty and licentiousness of the press; or, in any manner to "cancel, abridge, restrain, or modify" that inestimable right.8

Tucker argued that abolition of prior restraint "may satisfy the subject of England," but that "the people of America have not thought proper to suffer the freedom of speech, and of the press to rest upon such an uncertain foundation, as the will and pleasure of the government."9 He followed this assertion with a discussion of the First Amendment, the Virginia Declaration of Rights, and a stern condemnation of the Sedition Act of 1798, reminding Americans that "where absolute freedom of discussion is prohibited, or restrained" the political "responsibility" of those in power "vanishes."10

Tucker set out a theory of freedom of speech and press that tied American notions of natural rights, as proclaimed in the Declaration of Independence, with the needs of a constitutional democracy:

The right of personal opinion is one of those absolute rights which man hath received from the immediate gift of his Creator, but which the policy of all governments, from the first institution of society to the foundation of the American republics, hath endeavoured to restrain, in some mode or other."

The implication here, of course, was that in the United States the natural right of freedom of expression prevails over attempts by politicians and others to stifle discussion. But Tucker did not leave his analysis to mere implications, stating that:

Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political; and of inquiring into and, examining the nature of truth, whether moral or metaphysical; the expediency or inexpediency of all public measures, with their tendency and probable effect; the conduct of public men, and generally every other subject, without restraint, except as to the injury of any other individual, in his person, property, or good name.12

Tucker thus boldly declares that the "English doctrine" that "the liberty of the press consists only in [the idea] that there shall be no previous restraint laid upon the publication of any thing... is not applicable to the nature of our government."13

Justice Hugo Black used Tucker to bolster his concurring opinion in New York Times v. Sullivan, arguing that under the First and Fourteenth Amendments "a State has no more power than the

Federal Government to use a civil libel law or any other law to impose damages for merely discussing public affairs and criticizing public officials."14

Justice Black cited Tucker for the historical assertion that "[s]uch was the general view when the First Amendment was adopted and ever since."15 Black then ended his concurring opinion by quoting directly from Tucker on the relationship between freedom of expression and democracy:

For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it."

Similar to his analysis of freedom of speech and press, Tucker's discussion of religious free exercise was surprisingly modern, and far more protective of religious minorities than that of the current Supreme Court. Tucker provides important support for a broad reading of the Free Exercise clause of the Constitution. Drawing on the First Amendment and Virginia's experience with religious freedom, Tucker asserted that "[l]iberty of conscience in matters of religion consists in the absolute and unrestrained exercise of our religious opinions, and duties, in that mode which our own reason and conviction dictate, without the control or intervention of any human power or authority whatsoever."17 Tucker finds that "[t]his liberty" was "made a part of our constitution, and interwoven in the nature of man by his Creator. . . ."18 In Reynolds v. United States,19 the United States Supreme Court, in its first analysis of the Free Exercise clause of the First Amendment, made a distinction between belief and practice. The Court argued that the First Amendment protected the former, but not the latter. Recently the Court has revived this analysis.20 Tucker, however, offers strong support for the idea that at the Founding the view of religious liberty was far more expansive than the Court has been willing to concede.

II

Original Intent, The Supreme Court, and Modem Uses of Tucker

In addition to looking at national law, Tucker also considered the effect of the Virginia Constitution on English common law. This

is not surprising since Tucker was a Virginia lawyer and judge, who held the chair in "Law and Police" at the College of William and Mary while he prepared his edition of Blackstone. Although Tucker focused on Virginia, the implications of his writings hold true for all the states. In an age when practitioners, scholars, and even the United States Supreme Court are now reconsidering the protection of fundamental liberties at the state level, Tucker's Blackstone is increasingly important.21 Similarly, for those who are interested in original intent, Tucker provides an important window to how some people viewed the Constitution and the Bill of Rights at the time of their adoption. While Tucker published his edition of Blackstone in 1803, he began writing it in 1790, as he prepared lectures for his courses at William and Mary. The ideas and arguments in his volumes are thus perhaps as contemporaneous to the Founding as it is possible to find.

Tucker's Blackstone can also help lawyers better address some of the technical aspects of modern practice. For example, in some types of complex litigation, lawyers today are confronted with trying to determine whether a modern case would have been tried at law or equity had it been before the courts in the late Eighteenth Century. This is not merely an academic question. The right to a jury trial in a civil matter can turn on whether such a matter would have been before a jury, or before an equity court, in the 1790s. Moreover, what constitutes due process in a criminal trial can in part hinge on the elements of criminal due process at the time of the adoption of the Bill of Rights. The same might be true for determining who is competent to be tried. In Medina v. California,22 the United States Supreme Court "adopted a historically based test that limits the requirements of due process to traditional notions of fairness."23 In another case, Justice Scalia argued in dissent that to achieve due process police practices must follow similar practices from the Pounding.24 There are relatively few sources for determining what practice might have been like at the Founding, but a significant one is Tucker's Blackstone.

The Supreme Court has, of course, always recognized the importance of Tucker's work. The Court has cited Tucker's Blackstone in more than forty cases. More significant than the number of citations, however, is the use of Tucker in major cases. The antebellum Court cited Tucker in such landmark cases as Fletcher v. Peck,25 Dartmouth College v. Woodward,26 Gibbons v. Ogden,27 Charles River Bridge v. Warren Bridge Co.,28 and Dred Scott v. Sandford.29 Tucker did not disappear after the Civil War, how-

ever. The Court used his work in The Slaughterhouse Cases,30 Spies v. Illinois,31 Davis v. Beason,32 and the two income tax cases, Pollock v. Farmers' Loan & Trust Co.33 Since World War II, Tucker's Blackstone has made something of a comeback, as courts have searched for the original intent of the Constitution. The divisive issue of Freedom of Expression led justices back to Tucker in Dennis v. United States,34 Barenblatt v. United States,35 and New York Times v. Sullivan, where Justice Hugo Black used Tucker to argue for an expansive reading of the First Amendment.36 More recently, the Court has cited Tucker in U.S. Term Limits, Inc. v. Thornton,37 to help interpret state legislation affecting fundamental ideas about representative government, and in Harmelin v. Michigan,38 to help explain the original meaning of portions of the Bill of Rights.

III St. George Tucker

St. George Tucker was born in 1752 near Port Royal, Bermuda, the youngest of six children of Henry and Anne Butterfield Tucker. As a young man St. George hoped to study law in London, but his father, a middling gentleman usually called "Colonel," never quite had the ability to finance such a journey. Instead, St. George had to settle for an education on the North American mainland. He arrived in New York in October 1771, and by January he had reached Williamsburg, where he studied law at the College of William and Mary under George Wythe, the first law professor in the New World, and only the second (after William Blackstone) in the Anglo-American world. By April 1774, the intellectually versatile Tucker had become a member of the Virginia Bar, the Clerk of the Dinwiddie County Court, and the Assistant Secretary of the Virginia Society for Promoting Useful Knowledge. In early 1775, Tucker returned to his native Bermuda, but by then he was already committed to the patriot cause on the mainland. He was back in Virginia in January 1777, spending the early part of the Revolution as a trader, bringing much needed salt and gunpowder from his native island to his adopted home. While not a war profiteer, these trading ventures nevertheless left Tucker financially secure. He subsequently served in the Virginia militia, rising to the rank of Lt. Colonel and fighting in battles at Guilford Court House and Yorktown, where he was wounded. In 1782, as the war came to an end, Tucker was finally able to begin practicing law. In September of that year Tucker was elected to the Board of Visitors for the College of William and Mary. Two months later he filed

what amounted to an amicus curiae brief in the case of Commonwealth v. Caton.39 In this brief he strenuously argued for the right of judicial review on the part of the state's highest court. The Virginia Court of Appeals concurred in this position. In his edition of Blackstone, Tucker would later argue for an independent judiciary, asserting that a judge must be "placed above the reach of every species of temptation; he must be without hopes and without fears, as far as related to the tenure of his office and the continuance of his salary."40 Only under such circumstances could a fair administration of justice take place. In Tucker's view, a just legal system would necessarily include judicial review.

Tucker had barely started his career when he was asked to serve as the Commonwealth Attorney (county prosecutor) in Chesterfield County. He was, in other words, a rising star in Virginia law and politics. Confirmation of his emerging status came in 1785, when Governor Patrick Henry appointed him head of the Chesterfield County militia, a position which was always occupied by one of the "big men" of the county. In the spring of 1786, however, Tucker abandoned his growing practice in rural Chesterfield County, resigned as commonwealth attorney and militia head, and commenced a career in Richmond, practicing at the General Court, Chancery Court, and Court of Appeals.

In 1785, Tucker published a pamphlet urging a stronger national union and the creation of a commercial conference of all the states to amend the Articles of Confederation. The Virginia General Assembly endorsed this proposal, setting in motion the calling of the Annapolis Convention. When the Convention met in September 1786, Tucker joined James Madison as part of the Virginia delegation. Although the Convention was a failure, it set the Stage for the more important Philadelphia Convention the following spring.

Despite his earlier support for revisions to the Articles of Confederation, Tucker initially opposed the new Constitution. However, by January 1788 he was a committed Federalist. One scholar suggests this change was opportunistic: "The Assembly had created a new court during its winter term and he was being mentioned as a possible judge. The Virginia judiciary was predominately Federalist, composed of men like George Wythe, Edmund Pendleton, John Blair, Paul Carrington, Richard Cary, and John Tyler."41 This analysis seems unpersuasive. After all, the judges, Federalist though they were, were not in a position to choose a new judge. Indeed, the most powerful politician in the state, Patrick

Henry, was an adamant opponent of the Constitution. Therefore, Tucker's change of heart could hardly be considered politically expedient. It is more likely that upon careful consideration, Tucker concluded that whatever its defects, the Constitution was not only an improvement over the Articles of Confederation, but that it was also not a betrayal of the ideas of the Revolution. This is certainly reflected in his subsequent career, especially in his notes and appendices to his edition of Blackstone.

In January 1788, the Virginia legislature chose Tucker to serve on the newly reorganized General Court. In March 1790, the College of William and Mary appointed him to succeed his teacher, George Wythe, as the Professor of Law and Police. Tucker accepted the teaching position while remaining on the General Court. At William and Mary, Tucker organized his course around Blackstone's Commentaries. In 1795, Tucker began to take steps towards publishing his notes on Blackstone, but he did not immediately find a publisher. While he searched for one, Tucker continued to work on his manuscript.

In 1796, Tucker published A Dissertation on Slavery: With A Proposal for the Gradual Abolition of It, in the State of Virginia. This Dissertation appeared as a pamphlet of about one-hundred pages, and would later be incorporated in its entirety into the appendix of volume two of his edition of Blackstone.42 In his introduction to A Dissertation on Slavery, Tucker noted that it "form[ed] a part of a course of Lectures on Law and Police" which he "delivered" at the College of William and Mary.43 Tucker was by no means a radical, or proto-abolitionist. He was sometimes tempted to advise outright abolition, fiat justitia ruat coelum ("do justice and let the heavens fall"), but was cautioned by the slaughter of the revolution in Haiti.44 As proposed, his "gradual" emancipation scheme would have taken nearly a century to fully end bondage in the Old Dominion. Nevertheless, it was a public demand for an end to slavery, passionately written by one of Virginia's prominent citizens;

Whilst we were offering up vows at the shrine of liberty, and sacrificing hecatombs upon her altars; whilst we swore irreconcileable hostility to her enemies, and hurled defiance in their faces; whilst we adjured the God of Hosts to witness our resolution to live free, or die, and imprecated curses on their heads who refused to unite with us in establishing the empire of freedom; we were imposing upon our fellow men, who differ in complexion from us, a slavery, ten thou

sand times more cruel than the utmost extremity of those grievances and oppressions, of which we complained.45

Tucker's Dissertation was the only significant anti-slavery pamphlet to come out of Virginia at this time.

Tucker's edition of Blackstone appeared in 1803. A logical market for the book would have been his own students at William and Mary. However, in December 1803 he resigned from William and Mary, effective March 1804. Tucker left the College because of disagreements with the Board of Visitors. The board was especially unhappy with Tucker's persistent habit of teaching his classes in his home, rather than on school grounds. At the time he resigned Tucker was still a judge on the general court, and thus was neither abandoning the law nor retiring. In fact, he quickly moved on to a better position. In January 1804, the Virginia legislature elected him to fill the seat of the late Edmund Pendleton as a member of the Virginia Supreme Court of Appeals.

In 1811, Tucker resigned from the Virginia bench, in part because of declining health, and in part because he just did not like the job much. There is some indication he did not get along well with his fellow judges. However, two years later his health had improved, and President James Madison nominated him to the United States District Court for Virginia. In this position he would be without colleagues, free to act as he wished. This was the highest position Tucker would ever achieve, since there were already two Virginians on the United States Supreme Court: Chief Justice John Marshall and Associate Justice Bushrod Washington. There would thus never be room for a third Virginia Justice in Tucker's lifetime. We can only imagine what the Court would have been like with two of the nation's greatest legal scholars, Tucker and Joseph Story, serving together. But, instead, Tucker remained on the District Court until shortly before his death in 1827.

Tucker was a learned, versatile, and well-rounded humanist. Like Blackstone, he was a superb legal scholar. But unlike his British counterpart, he was a "renaissance man," interested in all intellectual pursuits. In addition to being a legal scholar, he was a musician, composer, playwright, poet, architectural critic, and inventor. Like his friend Jefferson, Tucker collected books, read widely, and was deeply interested in history.46 Unlike Jefferson, however, who never publicly advocated an end to slavery,47 Tucker proposed a gradual emancipation scheme, and published his ideas. Tucker's career as a jurist and teacher was remarkable, and helped

shape the creation of American law after the Revolution. However, his greatest significance clearly lies in his edition of Blackstone, which remains to this day a landmark of American legal scholarship.48

IV Tucker's Pedagogy and Constitutional Theory

When he began teaching at William and Mary, Tucker used Blackstone's Commentaries as his basic text. It was certainly the most comprehensive and accessible treatise on the common law. From Tucker's perspective, however, it was deeply flawed. In the introduction to his edition of Blackstone, Tucker noted that before Blackstone published his Commentaries, English and American law students were "almost destitute of any scientific guide to conduct their studies."49 Ten years after the publication of the Commentaries the Revolution began. The Revolution, the adoption of the state constitutions, the creation of a national Constitution, and the break from England permanently and fundamentally altered the nature of American law. Tucker believed that Blackstone "could only be safely relied on as a methodical guide, in delineating the general outlines of law in the United States, or at most, in apprizing the student of what the law had been,"50 but Blackstone could not be relied on to teach what the law had become.

Tucker also understood that Blackstone continued "to be regarded as the student's guide, in the UNITED STATES." He noted that students read the law — that is, read Blackstone's Commentaries — and were admitted to the bar without any "information respecting the laws of their own country."51 Moreover, even those diligent students who tried to learn American law would find it a difficult if not impossible task. From the moment Blackstone published his Commentaries (1765-1769), Tucker felt the volumes "were very inadequate to the formation of a lawyer" because they did not integrate colonial statutes and practice with the English practice.52 This became more acute after the Revolution.

Despite its inadequacies, Tucker used Blackstone as his main text for his classes at William and Mary. He supplemented the Commentaries with lectures on American law and especially on Virginia law. His goal was to merge Blackstone's traditional approach to English common law with the reality of the emerging American law, which was based on statutes, American common law, written constitutions, and the ideology of the Revolution. Invoking the democratic spirit of the new nation, Tucker placed

much greater emphasis on legislation than Blackstone had. But he also stressed that there was a significant difference between British and American notions of legislation and sovereignty. Blackstone emphasized Parliamentary supremacy; Tucker stated that in the United States that "all authority, among us, is derived" from "the PEOPLE."53

Acknowledging this notion of a government created "by the consent of the governed," as the Declaration of Independence put it, Tucker started in 1798 to require his law students to read John Locke's Essay on Civil Government.54 This addition to the law curriculum illustrates Tucker's understanding that political philosophy was directly connected to the emergence of a distinctly American law. Tucker's use of Locke is surprisingly modern and reflects the very unBlackstonian idea the law is a mirror of politics. In the past few decades American legal educators have increasingly incorporated philosophy and political thought into their courses. Without even realizing it, they are in part following a path laid out two centuries ago by Tucker.

As a Constitutional theorist Tucker can be classified as a moderate states' rights advocate. In the early national period, lawyers, judges, and politicians were split on the system of the government created by the Constitution. Nationalists saw the federal government as a creature of the people of the United States. States' rights theorists, on the other hand, viewed the Constitution as a compact between the several states, each acting through its citizens." Tucker was the earliest constitutional commentator to advocate the compact theory, writing:

The constitution of the United States of America ... is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states of North-America, and ratified by the people thereof, respectively... 56

According to Tucker, the several sovereign states united themselves in a perpetual confederacy, each retaining its status as "a perfect state."57

Later theorists, such as Virginia's Abel Parker Upshur, one of the most extreme states' rights and pro-slavery politicians of the antebellum period, would elaborate upon the compact theory and use it to justify nullification. Although Upshur did not live to see secession, his theories clearly supported it.58 Alexander Stephens, who became the Vice President of the Confederate States of

America, justified secession with theories similar to those propounded by Tucker.59

Tucker, however, never supported such extreme doctrines. In his denunciation of the Sedition Act of 1798, for example, he relied on the limitations of the First Amendment, not on notions of state sovereignty. He viewed the Constitution as the supreme law of the land, binding future generations until such time as "the people of the United States" — significantly, not the sovereign states — chose to alter or revoke it.60 Dissolution of the Union was ''[a]n event which no good citizen can wish, and which no good or wise administration will ever hazard."61

Like the nationalists, Tucker recognized that the federal government was supreme within its delegated sphere. He was a strong advocate of judicial review and saw the judiciary as a check upon the usurpations of power by the other two branches of government.62 Thus, he wrote in his edition of Blackstone:

[I]f the legislature should pass a law dangerous to the liberties of the people, the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution. If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience; or abridging the freedom of speech, or of the press, or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act.63

This approach to judicial review clearly places Tucker in the mainstream of American constitutional interpretation. Indeed, here Tucker hardly differs from Chief Justice Marshall.

V

The Publication of Tucker's Blackstone Tucker first attempted to publish his notes on Blackstone in January 1795. It was a simple matter to convert his lectures into notes and appendices for the new edition of Blackstone. A number of significant lawyers and judges, including John Page and Supreme Court Justice James Wilson, enthusiastically endorsed the project, although none apparently offered to help launch it. Indeed, despite endorsements from leaders of the bench and bar, Tucker had a difficult time finding a publisher willing to undertake a full print

ing of both his notes and Blackstone's Commentaries. The reluctance was essentially due to financial considerations. Most American lawyers already had a copy of Blackstone. Publishers feared they would not want to purchase another just to get Tucker's notes.

Tucker approached the Philadelphia printer William Tatham about his project. Tatham, too, was enthusiastic, but in the end felt he lacked the resources for such a undertaking. The publisher Thomas Dobson, showing an enormous lack of vision, declined to do the project because he thought Tucker's focus on Virginia was too narrow, and because he believed most attorneys already owned a copy of Blackstone. Three other publishers also declined, although one of them, Mathew Carey, did publish his Dissertation on Slavery as a separate pamphlet.64

In 1797, Tucker negotiated with Mason Locke Weems, better known as "Parson" Weems, the author of the famous, although largely fictitious biography of George Washington.65 Weems was in fact little more than a salesman for Carey, and hence unable to undertake such a large publishing venture on his own. In 1800, Tucker once again approached Mathew Carey, but the negotiations went nowhere. Finally, in 1802, Tucker arranged for publication through a Williamsburg printer, Abraham Small, and his Philadelphia partner, William Birch. By this time, apparently desperate to see the work in print, Tucker sold the partners all rights in the books for $4,000.66 This was a substantial amount of money for Tucker, although in the end it was probably a much better bargain for the publishers. Tucker's Blackstone was the only American edition of the classic published until 1852, and there was really no serious competition from an American edition until after the Civil War. Moreover, until the publication of Kent's Commentaries in the 1820s, Tucker's was the only treatise on American law available in the nation. Until 1827, Tucker was the most frequently cited American legal scholar,67 when Kent, and then Story, surpassed him. Nevertheless, until the eve of the Civil War Tucker's Blackstone was an essential part of most lawyers' libraries. While no longer a necessity for every lawyer today, Tucker's work remains a valuable window through which we can better understand law and constitutional theory at the Founding. Moreover, when cases, political discussion, or questions of legal theory require us to consider and apply the first principles of our legal and constitutional order, Tucker is once again an essential tool.

Paul Finkelman David Cobin

NOTES

1. The original was William Blackstone, Commentaries on the Laws of England (Oxford: The Clarendon Press, 1765-1769).

2. William F. Swindler, "St. George Tucker: States' Rights Spokesman," in Dedication: Tucker-Coleman Collection (Williamsburg, Va.: Earl Greg Swem Library, 1966) 9.

3. Erwin C. Surrency, A History of American Law Publishing (New York:

Oceana, 1990) 133.

4. Id., 133.

5. Philip B. Kurland and Ralph Lerner, eds., The Founders' Constitution (Chicago: University of Chicago Press, 1987) 5:152-58,207,212,218,238, and 404.

6. St. George Tucker, Blackstone's Commentaries, vol. 2, Appendix to Volume First, Pan Second, Note G, 18.

7. Id.

8. Id., at 18-9.

9. Id., at 13.

10. Id., at 16.

11. Id., at 3.

12. Id., at 11.

13. Id., vol. 1, at 298.

14. New York Times v. Sullivan, 376 U.S. 254 (1964), at 295.

15. Id; at 296, citing Tucker, Blackstone's Commentaries, vol. 1, 297-9 (Appendix, Note D).

16. Id., at 297, quoting Tucker, Blackstone's Commentaries, vol. 1,297 (Appendix, Note D).

17. Tucker, vol. 2, Appendix to Volume First, Part Second, Note G, 4.

18. Id.

19. Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879).

20. Employment Division of Oregon v. Smith, 494 U.S. 872 (1990).

21. See, for example, the essays in Paul Finkelman and Stephen Gottlieb, Toward a Usable Past: Liberty under State Constitutions (Athens, Ga.: University of Georgia Press, 1991). 22. 112 S.Ct. 2572 (1992).

23. Bruce J. Winnick, "Presumptions and Burdens of Proof in Determining Competency to Stand Trial: An Analysis of Medina v. California and the Supreme Court's New Due Process Methodology in Criminal Cases," 47 Miami Law Review 817 (1993), at 818. 24. County of Riverside v. McLaughlin, 111 S.Ct. 1661 (1991). 25.10 U.S. (4 Cr.) 87 (1810). 26.17 U.S. (4 Wheat.) 518 (1819). 27.22 U.S. (9 Wheat.) 1 (1824).

28. 36 U.S. 420 (1837).

29. 60 U.S. (19 How.) 393 (1857).

30. 83 U.S. (16 Wall.) 36 (1873). 31.123 U.S. 131 (1890). 32.133 U.S. 333 (1890).

33. 157 U.S. 429 (1895) and 158 U.S. 601 (1895).

34. 341 U.S. 494 (1951).

35. 360 U.S. 109 (1959).

36. 376 U.S. 254 (1964), at 296-7. 37.115 S.Ct. 1842 (1995).

38. 501 U.S. 957 (1991).

39. 4 Call. 5 (1782).

40. Tucker, Blackstone's Commentaries, vol. 1, Appendix, 136.

41. Charles T. Cullen, St. George Tucker and Law in Virginia, 1772-1804 (New York: Garland Publishing, 1987) 60-1.

42. Tucker, Blackstone's Commentaries, vol. 2, Appendix, Note H, 31-85.

43. St. George Tucker, A Dissertation on Slavery: With a Proposal for the Gradual Abolition of It, in the State of Virginia (Philadelphia: Mathew Carey, 1796) [5].

44. Tucker letter to Jeremy Belknap, 24 Jan. 1795, Massachusetts Historical Society Collections, 5th ser., 3:379-81.

45. Tucker, Blackstone's Commentaries, vol. 2, Appendix H, 31.

46. Richard Beale Davis, Intellectual Life in Jefferson's Virginia, 1790-1830 (Knoxville: University of Tennessee Press, 1972) 94-6, 231.

47. Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk, NY: M.E. Sharpe, 1996) 105-67.

48. Tucker is also remembered as the father of the extreme states' advocate, Nathaniel Beverly Tucker, and the distinguished legal scholar and judge, Henry St. George Tucker, who, following in his father's footsteps, took a decidedly more moderate view of states' rights and slavery. See generally, David M. Cobin, "Henry St. George Tucker: Jurist, Teacher, Citizen, 1780-1848," in Winchester-Frederick County Historical Society Journal 6:5-41 (1992).

49. Tucker, Blackstone's Commentaries, vol. 1, iii.

50. Id., at v.

51. Id.

52. Id., at iv.

53. Id., Appendix A, at 4.

54. Cullen, at 127.

55. See Elizabeth Bauer, Commentaries on the Constitution (New York:

Columbia University Press, 1952) 253.

56. Tucker, Blackstone's Commentaries, vol. 1, Appendix to Volume First, Pan First, Note D, 140.

57. Id.

58. Bauer, 287.

59. Alexander Stephens, A Constitutional view of the Late War between the States (Philadelphia: National Publishing Company, 1868).

60. Tucker, Blackstone's Commentaries, vol. 1, Appendix to Volume First,

Pan First, Note D, 173. In contrast, Thomas Jefferson used states' rights

arguments to denounce the Sedition Act in his Kentucky Resolutions of

1798.

61. Id., at 187.

62. See Kamper v. Hawkins, 1 Va.Cas. 20 (1973).

63. Tucker, Blackstone's Commentaries, vol. 1, Appendix to Volume First Pan First, Note D, 357.

64. Cullen, 158.

65. For the most recent modern edition, see Mason Locke Weems, The Life of Washington: A New Edition with Primary Documents, Peter S. Onuf, ed., (Armonk, NY: M.E. Sharpe, 1996).

66. Cullen, 158-60.

67. Id., at 163.

COMMENTARIES

ON THE

LAWS OF ENGLAND

District of Pennsylvania: to wit.

BE it remembered, That on the ninth day of May, in the twenty-seventh Year of the Independence of the United States of America, William Young Birch, and Abraham Small, of the said District, have deposited in this Office the Title of a Book, the right whereof they claim as Proprietors, in the words following, to wit:

"Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to each Volume, containing, Short Tracts upon such Subjects as appeared necessary to form a connected View of the Laws of Virginia, as a Member of the Federal Union. By St. George Tucker, Professor of Law, in the University of William and Mary, and one of the Judges of the General Court in Virginia."

In Conformity to the Act of the Congress of the United States, intituled, "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 an Act entituled, "An Act supplementary to an Act, entituled, 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." (L. S.) D. CALDWELL,

Clerk of the District of Pennsylvania.

COMMENTARIES

ON THE

LAWS OF ENGLAND.

IN FOUR BOOKS.

BY SIR WILLIAM BLACKSTONE, KNT.

ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF COMMON PLEAS.

WITH THE LAST CORRECTIONS OF THE AUTHOR.

ADVERTISEMENT.

The Editor having procured a copy of a late Edition of Blackstone's Commentaries, published in London, by Edward Christian, Esq. has made a selection of such of the Notes, contained in that Edition, as appeared to him most likely to be of use to an American Student... In the Second Volume, the selection has been more copious than in any of the others:

they are distinguished, by his name being subjoined to the end of each Note.

MAY 12, 1803.

CONTENTS, OF BOOK FIRST. PART FIRST.

INTRODUCTION.

OF THE STUDY, NATURE, AND EXTENT OF THE LAWS OF ENGLAND.

SECTION I.

Of the Study of the Law ---------- PAGE 3

SECTION II.

Of the Nature of Laws in General -------- 38 SECTION III. Of the Laws of England ------------ 62

SECTION IV.

Of the Countries Subject to the Laws of England - - - - 93

THE EDITOR'S APPENDIX.

NOTE A.

Of Sovereignty and Legislature -------- PAGE 3

NOTE B. Of the several Forms of Government -------- 7

NOTE C. Of the Constitution of Virginia --------- 79

NOTE D.

Of the Constitution of the United States ------- 140

NOTE E.

Of the Unwritten, or Common Law, of England; and it's introduction into, and authority within, the United American States ---------------- 378

NOTE F. Of the LEX SCRIPTA; or Written Law, of Virginia - - - 440

TO THE READER.

Messrs. Pleasants and Pace, having, since this Edition of the Commentaries has been in the press, published a new collection of the LAWS or VIRGINIA, containing, not only, all the acts printed in the edition of 1794, but likewise, a very considerable number of acts passed since that period; the Editor avails himself of the opportunity, thereby afforded him, to assist the researches of the student, in consulting any act contained in that collection, which may be referred to in the notes, or appendices to this work. For this purpose, he has formed the following table, shewing, the correspondence between the edition of 1794, and subsequent sessions acts, and the chapters in the latter collection; by means of which, any act contained in that collection, and referred to in the following notes, may readily be found.

TABLE.

N. B. The chapters, in Pleasant's and Pace's collection correspond with the chapters, as numbered in the edition of 1794, from chap. 1, to chap. 181, inclusive: the correspondence between the succeeding chapters and the Sessions acts, as published annually, will appear below.
Sessions Acts.	Pace's Edi.	Sessions Acts	Pace's, Edi.	Sessions Acts.	Pace's Edi.	Sessions Acts.	Pace's Edi.
1795 c. 1	c. 182	c. 25	c. 216	c. 14	c. 250	c. 71	c. 284
c. 2	c. 183	c. 27	c. 217	c. 15	c. 251	1801 c. 1	c. 285
c. 3	c 184	c. 28	c. 218	c. 19	c. 252	c. 2	c. 286
c. 5	c. 185	c. 42	c. 219	c. 23	c. 253	c. 3	c. 287
c. 8	c. 186	c. 45	c. 220	1799 c. 1	c. 254	c. 4	c. 288
c. 9	c. 187	1797 c. 2	c. 221	c. 2	c. 255	c. 5	c. 289
c. 10	c. 188	c. 4	c. 222	c. 3	c. 256	c. 7	c. 290
c. 11	c. 189	c. 5	c. 223	c. 8	c. 257	c. 8	c. 291
c. 13	c. 190	c. 6	c. 224	c. 11	c. 258	c. 9	c. 292
c. 14	c. 191	c. 7	c. 225	c. 17	c. 259	c. 10	c. 293
c. 15	c. 192	c. 8	c. 226	c. 23	c. 260	c. 11	c. 294
c. 16	c. 193	c. 9	c. 227	c. 34	c. 261	c. 12	c. 295
c. 17	c. 194	c. 10	c. 228	c. 46	c. 262	c. 13	c. 296
c. 18	c. 195	c. 12	c. 229	c. 49	c. 263	c. 14	c. 297
c. 19	c. 196	c. 13	c. 230	c. 58	c. 264	c. 25	c, 298
c. 20	c. 197	c. 14	c. 231	c. 59	c. 265	c. 23	c. 299
c. 54	c. 198	c. 15	c. 232	c. 64	c. 266	c. 15	c. 300
1796 c. 1	c 199	c. 16	c. 233	1800 c. 2	c. 267	c. 16	c. 301
c. 2	c. 300	c. 23	c. 234	c. 4	c. 268	c. 17	c. 302
c. 5	c. 201	c. 24	c. 236	c. 6	c. 269	c. 18	c. 303
c. 6	c. 202	c. 36	c. 236	c. 12	c. 270	c. 19	c 304
c. 7	c. 203	c. 44	c. 237	c. 38	c. 271	c. 21	c. 305
c. 8	c. 204	c. 55	c. 238	c. 39	c. 272	c. 24	c. 304*
c. 9	c. 205	c. 65	c. 239	c. 40	c. 273	c. 28	c. 306*
c. 11	c 205	c. 108	c. 240	c. 43	c. 274	c. 84	c. 307*
c. 12	c 207	1798 c. 1	c. 241	c. 44	c. 275
c. 13 c. 16	c 208 c. 209	c. 2 c. 3	c. 242 c. 243	c. 51 c. 53	c. 276 c. 277	October 1782 c 19	Appx. c. 1
c, 17	c. 210	c. 6	c. 344	c. 54	c. 278	1784 c. —	c. 2
c. 18	c. 211	c. 7	c. 245	c. 58	c. 279		c. 3
c 19	c. 212	c. 9	c. 246	c. 59	c. 280		c. 4
c. 20	c. 213	c 10	c. 247	c 60	c. 281	1792 c. 27	c. 5
c. 23	c. 214	c. 11	c. 248	c. 61	c. 282	c. 27	c. 6
c 24	c 215	c. 13	c. 249	c 70	c 283

* There is a small error in the numbering of these three chapters in Pleasant and Pace's Edition; they are here referred to as numbered.

PREFACE.

THE following sheets contain the substance of a course of Lectures on the Laws of England, which Were read by the author in the university of OXFORD. His original plan took its rise in the year 1753: and, notwithstanding the novelty of such an attempt in this age and country, and the prejudices usually connived against any innovations in the established mode of education, he had the satisfaction to find, (and he acknowledges it with a mixture of pride and gratitude) that his endeavours were encouraged and patronized by those, both in the university and out of it, whose good opinion and esteem he was principally desirous to obtain.

• The death of Mr. VINER, in 1756, and his ample benefaction to the university for promoting the study of the law, produced about two years afterwards a regular and public establishment of what the author had privately undertaken. The knowledge of our laws and constitution was adopted as a liberal science by general academical authority; competent endowments were decreed for the support of a lecturer, and the perpetual encouragement of students; and the

compiler of the ensuing commentaries had the honour to be elected the first Vinerian professor.

In this situation, he was led, both by duty and inclination, to investigate the elements of the law, and the grounds of our civil polity, with greater assiduity and attention than many have thought it necessary to do. And yet all, who of late years have attended the public administration of justice, must be sensible that a masterly acquaintance with the general spirit of laws and the principles of universal jurisprudence, combined with an accurate knowledge of our own municipal constitutions, their original, reason, and history, hath given a beauty and energy to many modem judicial decisions, with which our ancestors were wholly unacquainted. If, in the pursuit of these inquiries, the author hath been able to rectify any errors which either himself or others may have heretofore imbibed, his pains will be sufficiently answered:

and, if in some points he is still mistaken, the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborious.

2d Nov. 1765.

THE EDITOR'S PREFACE.

WHEN a work of established reputation is offered to the

public in a new dress, it is to be expected that the Editor should

assign such reasons for so doing, as may not only exempt him from the imputation of a rash presumption, but shew that some benefit may be reasonably expected to result from his labours.

Until the COMMENTARIES on the laws of England by the late Justice Blackstone made their appearance, the students of law in England, and its dependencies, were almost destitute of any scientific guide to conduct their studies. "A raw and unexperienced "youth," he remarks, "in the most dangerous season of life is transplanted on a sudden into the midst of allurements to pleasure without any restraint or check, but what his own prudence can suggest; with no public direction in what course to pursue his inquiries; no private assistance to remove the distresses and difficulties which always embarrass a beginner. In this situation he is expected to sequester himself from the world, and by a tedious lonely process to extract the theory of law from a mass of undigested learning." How little, therefore, is it to be wondered at" he adds, "that we hear of so frequent miscarriages, that so many gentlemen of bright imaginations grow weary of so unpromising a search; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives!" Such is the picture which our author gives us of the difficulties which at that time attended the study of the law, even in those Inns of court whither those who sought to acquire a knowledge of the profession, generally repaired for instruction. On the appearance of the COMMENTARIES, the laws of England, from a rude chaos, instantly assumed the semblance of a regular system. The

viginti annorum lucubrationes it was thought might thereafter be dispensed with, and the student who had read the COMMENTARIES three or four times over, was lead to believe that he was a thorough proficient in the law, without further labour, or assistance;

the crude and immethodical labours of Sir Edward Coke were laid aside, and that rich mine of learning, his Commentary upon Littleton, was thought to be no longer worthy of the labour requisite for extracting its precious ore. This sudden revolution in the course of study may be considered as having produced effects almost as pernicious as the want of a regular and systematic guide, since it cannot be doubted that it has contributed to usher into the profession a great number, whose superficial knowledge of the law has been almost as soon forgotten, as acquired. And this evil we may venture to pronounce has been much greater in the Colonies dependent upon Great-Britain, than in England itself, for the laws of the Colonies not being at all interwoven with the COMMENTARIES, the colonial student was wholly without a guide in some of the most important points, of which he should have been informed; admitting that he were acquainted with the law of England upon any particular subject, it was an equal chance that he was ignorant of the changes introduced into the colonial codes; which either from inexperience, inattention, or other accidental circumstances have undergone a variety of modifications, provisions, suspensions, and repeals, in almost all the colonies dependent upon great Britain. The COMMENTARIES, therefore though universally resorted to as a guide to the colonial student, were very inadequate to the formation of a lawyer, without other assistance; that assistance from the partial editions of colonial laws (at least in Virginia) was extremely difficult to be obtained. Few gentlemen, even of the profession, in this country, have ever been able to boast of possessing a complete collection of its laws;

the Editor confesses that his own endeavours to procure one have hitherto been ineffectual.

Not many years after the reception of the COMMENTARIES into the libraries of gentleman of the profession, and the adoption of them as a guide to those who wished to acquire it, the revolution which separated the present United States of America from Great Britain took effect; this event produced a corresponding revolution not only in the principles of our government, but in

the laws which relate to property, and in a variety of other cases, equally contradictory to the law, and irreconcileable to the principles contained in the COMMENTARIES. From this period, that celebrated work could only be safely relied on as a methodical guide, in delineating the general outlines of law in the United States, or at most, in apprizing the student of what the law had been; to know what it now is, he must resort to very different sources of information; these, although the period which has elapsed since their first introduction is scarcely more than twenty years, are now so numerous, (at least in this state) and so difficult to be procured, that not one in fifty students of law has at this day any chance of perusing them.

Notwithstanding these circumstances, the COMMENTARIES have continued to be regarded as the student's guide, in the UNITED STATES; and many there are, who without any other aid have been successful candidates for admission to the bar in this state, and perhaps in others: it cannot, therefore, be surprising that so many who have obtained licences to practice, discover upon their entrance into the profession a total want of information respecting the laws of their own country. A misfortune which their utmost diligence thereafter is required to remedy. A misfortune unavoidably attendant on that obscurity' into which the laws of this state have been thrown, by partial editions, and by the loose and slovenly manner in which the acts of the legislature are stiched together, and dispersed throughout the country in unbound, and even uncovered sheets, more like ephemerons than the perpetual rules of property, and of civil conduct in a state.

These inconveniences had been sensibly felt by the Editor, whose utmost diligence had been in vain applied to their removal, when he was unexpectedly called to fill the chair of the professor of law in the university of WILLIAM AND MARY, IN VIRGINIA, then vacant by the resignation of a gentleman,* to whose advice and friendly instruction he was indebted for whatever talent he might be supposed to possess for filling the office of his successor. Great as he felt the distance between himself

* Mr. Wythe the present chancellor of Virginia.

and his predecessor, the partiality of his friends persuaded him to accept an office which he was by no means prepared to discharge to his own satisfaction. To prepare a regular course of original lectures would have required some years of study, and of labour, not only in collecting, but in methodizing and arranging his materials. The exigencies of the office did not permit this: he was obliged, in the short period of two or three months, to enter upon the duties of it: he determined to be useful to his pupils as far as his best endeavours would enable him to be so, without regarding the form in which his instructions might be conveyed. The method, therefore, which he proposed to himself to adopt, was to recur to Blackstone's Commentaries as a text, and occasionally to offer remarks upon such passages as he might conceive required illustration, either because the law had been confirmed, or changed, or repealed, by some constitutional or legislative act of the Federal Government, or of the commonwealth of Virginia. This method he was led to adopt, partly, from the utter impracticability of preparing a regular course of lectures, for the reasons before mentioned; and, partly, from the exalted opinion he entertained of the Commentaries as a model of methodical elegance and legal perspicuity: a work in which the author has united the various talents of the philosopher, the antiquarian, the historian, the jurist, the logician and the classic: and which has undergone so many editions in England, Ireland, and America, as to have found its way into the libraries of almost every gentleman whether of the profession, or otherwise; and from general acceptance, had become the guide of all those who proposed to make the law their study. By these means he proposed to avail himself not only of the Commentator's incomparable method, but of his information as an historian and antiquarian, his classical purity and precision as a scholar, and his authority as a lawyer; without danger either of loss, or depreciation, by translating them into a different work; he was also encouraged to hope that by these means he might render that incomparable work a safe, as well as a delightful guide to those who may hereafter become students of law in this commonwealth.

It was foreseen, that the execution of this plan would not consist merely of short explanatory notes, and references to our state code: but that the prosecution of it would not unfrequent-

ly lead to inquiries, and discussions of subjects which neither form a part of, nor even bear any relation to, the laws of England. The CONSTITUTION of the UNITED STATES of America, and the particular Constitution of the state of VIRGINIA, it was supposed would afford a field of inquiry which yet remained to be fully explored; it was considered that it would be necessary to investigate the nature of that compact which the people of the United States have entered into, one with another; to examine the powers entrusted to those who exercise the government, and to satisfy ourselves of their just extent and limits; to consider the connection between the federal government, and the state governments; to trace with accuracy, as far as the novelty and intricacy of the subject would permit, their respective rights,

dependencies, and boundaries; to survey, with attention, the whole complicated structure of our government, and consider how far the parts of a machine so immense, intricate and complex, are likely to correspond, or interfere with the operations of each Other. Such a discussion would necessarily lead to an

examination of the principles of our government, in the course of which a dissent from the received maxims of that which we had shaken off would be unavoidable; and in such an investigation it was conceived that it would be more proper to rely on the authority of the American Congress, or of the several State Conventions, than the opinions of any speculative writers on government whatever: inasmuch as the declarations and acts of those BODIES were the foundation of the late revolution, and form the basis of the several republics that have been established among us; and have thus become constitutional declarations on the part of the PEOPLE, of their natural, inherent, and unalienable rights. From this circumstance, those acts and declarations might be considered, in our own republic at least, as settling the controversy between speculative writers, in all cases to which they extend. Mr. Locke, for example, contends that all power is vested in the people: this opinion is controverted by some, and doubted by other eminent writers on government, among whom it is sufficient to mention the learned Grotius, and the author of these Commentaries. Were it required to investigate this question hypothetically, it might be necessary to recur to the arguments on both sides, and decide according as they may be found to preponderate, since no preference could be given to

the bare authority of either of these great names. But when we find this principle asserted by CONGRESS in the Declaration of Independence; and by the CONVENTION of VIRGINIA in our Bill of Rights; insisted on, again, by the CONVENTION of the STATE upon the ratification of the Constitution of the United States; and finally acknowledged by the AMENDMENTS proposed to the Constitution by Congress, and since ratified by the several states, the contest, as it applies to the principles of our government, is at an end; and we are authorised to insist on the affirmative, with whatever ingenuity the opposite argument may be maintained.

The CONSTITUTION of VIRGINIA formed under circumstances which have occasioned its authority to be doubted, even by one of the most enlightened politicians that this country has produced, it was also supposed, would require a full and candid discussion. Framed at a time when America might be supposed to be in the cradle of political science, it will not be surprising if many defects have been discovered in it: to examine them impartially, and to propose a remedy for them, or at least for the most obvious and dangerous, it was presumed, could not be an unprofitable undertaking, and would naturally fall in with the plan which the editor proposed to adopt.

The authority and obligation of the COMMON LAW of England in the United States, was another subject, which it was deemed both necessary and proper to inquire into. If the arguments upon which the learned commentator founded his opinion, that "the common law of England, as such, had no allowance or authority in the British American colonies," antecedent to the revolution which separated them from each other, seem questionable, on the one hand, the opinion that it is NOW the general law of the land in the United States, in their collective and national capacity and character, appears not less questionable on the other. The Editor has therefore bestowed some considerable attention on the subject; and though he cannot flatter himself that his researches and conclusions will prove satisfactory, or convincing, to all parlies, he cannot but persuade himself that those who impartially seek after truth, will incline to the same opinion with himself.

THE EDITOR'S PREFACE.

And, again; although the common law is by express legislative adoption the law of the land in VIRGINIA, under certain restrictions, yet it has from time to time undergone such a variety of amendments, both statutory, and constitutional, that no student without some guide to assist him, can possibly know what to receive, or what to reject; it was, therefore, thought indispensibly necessary to advertise him in what cases its authority and obligation have been either in part diminished or totally destroyed by such amendments. Arid lastly, as the common law is a collection of general customs, it might not be amiss to inquire whether particular customs have any, or what force, among us.

The frequent recurrence to the statute law of England, in the Commentaries, might lead an unwary student to presume that all its provisions were in force in this country; or if he had heard that a part of the statutes only, were received and acknowledged as binding upon us in this commonwealth, he would be left in a state of the most absolute uncertainty respecting them; neither knowing which to receive, nor which to reject, as in the case of the provisions of the common law just mentioned. If he had been informed of the positive repeal of all British statutes by a late act of the legislature of Virginia, he might be tempted to suppose that it would be merely loss of time to peruse the abstract of them in the. Commentaries, although a short marginal note, might instruct him, perhaps, that they still are retained in our code, and form an important part of our jurisprudence. True it is, those provisions have no longer authority as acts of the British parliament: but a great number of them have been expressly adopted by our legislature; others have undergone some alteration the better to adapt them to our use; in some the very words of a statute have been retained, whilst in others the phraseology has, perhaps more from inadvertence than design, been changed; a considerable number have also been either tacitly, or expressly, rejected, or repealed. To a student pursuing a systematical course of study it must be highly important to be delivered from a labyrinth of uncertainty, by casting his eye to the bottom of the page, and there finding whether the statute he is considering still forms a part of, or has been expunged from, that code, which he wishes to understand.

Not only the regulations contained in the STATUTES, but many of the rules of the COMMON LAW have been occasionally interwoven in, or where doubtful, explained by legislative acts;

thereby ascertaining their meaning, and placing their validity beyond a doubt. To point out these cases, might save the student infinite labour, time, and error.

But, the almost total change in the system of laws relative to property, both real and personal, in Virginia, appeared more particularly to demand a strict scrutiny, and investigation; in the course of which it might not only be necessary to remark the more obvious, but the imperceptible, and perhaps unintended, changes, wrought by a loose, or incautious phrase, or reference. Instances of this kind have unfortunately more than once occurred in our code, and are the unavoidable result of frequently tampering with the rules of property.

The regulations of our internal police, the organization of our courts of judicature, both in the federal and state government;

their respective jurisdictions, and the mode of proceeding therein; are moreover subjects, concerning which the student can expect to receive very little information from the Commentaries, without the aid of notes to direct his attention to such as have been established here with similar powers. The courts of judicature in England have in general afforded the models of ours; but local circumstances have necessarily introduced a variety of new regulations, which by imperceptible and gradual changes, have lost all resemblance to the British original.

But independent of those alterations in the system of our jurisprudence to which local circumstances might be supposed to have given birth, there are a great number which appear to be merely the suggestions of political experiment, or a desire to conform to the newly adopted principles of republican government;

among these we may reckon the ABOLITION of entails, of the right of primogeniture, of the preference heretofore given to the male line, in respect to real estates of inheritance; and of the jus accrescendi, or right of survivorship between joint-tenants; the ascending quality communicated to real estates; the heretability of the half-blood; and of bastards; the legitimation of the lat

ter, in certain cases; and many other instances in which the rules of the COMMON LAW, or the provisions of a statute, are totally changed.

Many parts of the laws of England arc also either obsolete, or have been deemed inapplicable to our local circumstances and policy; these it might be proper to recommend to the perusal of the student, rather as matter of curiosity, than of necessary information to him as an American Lawyer. To this class might be referred the learning respecting ancient feudal tenures; the whole doctrine of copy-holds, and tithes, and whatsoever relates to special or particular customs. The constitution of the crown and parliament, with their several rights, prerogatives, and privileges, would at first appear to fall into the same class: but it was conceived that it might not be uninstructive to shew how far they have been rejected in our own constitutions; or where retained, in what manner they have been distributed thereby. In some cases it would be found that they have been confided solely to the President of the United States; that in others they are participated by the Senate, as an executive council, in other instances, Congress, taken collectively, are the depositaries of the sovereign will and authority of the people; and, if the Editor's partiality does not deceive him, it will be found, upon a candid investigation of the subject, that wherever the constitution of the United States departs from the principles of the British constitution, the change will, in an eminent degree, contribute to the liberty and happiness of the people, however it may diminish the splendour of the government, or the personal influence of those who administer it. For these reasons, it was conceived, that a more particular attention might be proper to those parts of the Commentaries, which treat on these subjects, than at first view might appear to be necessary.

The subject of domestic slavery, which, happily for the people of England, it was unnecessary to treat of in the Commentaries, is one, which a student of Law in Virginia ought not to pass over without attention. How far the condition of that unfortunate race of men, whom the unhappy policy of our forefathers has reduced to that degraded condition, is reconcileable to the principles of a free republic, it might be hard for the advocates

of such a policy to shew. It was, at least, presumed that in this enlightened age, when philanthropy is supposed to have been more generally diffused through the civilized nations of the earth than at any former period; and in this country, where the blessings of liberty have been so lately, and so dearly purchased, it could not be deemed improper to inquire whether there was a due correspondence between our avowed principles, and our daily practice; and if not, whether it were practicable, consistently with our political safety, to wipe off that stigma from our nation and government. Though the rights of nature, and the dictates of humanity, might heretofore have yielded to the suggestions of interest, the prejudices of education, or the apprehensions of timid politicians; it was still hoped to be demonstrable that reason and justice are reconcileable to our political and domestic interests.

The late revision and republication of the laws of this com

monwealth, might at first view appear to supersede the necessity of particular references thereto; the subjects being generally arranged under their proper heads, in bills of considerable length, it might be supposed, would enable the student to consult the

statutes, and form his own notes of their operation. But the inconvenience formerly hinted at, arising from partial, instead of complete editions of our statute law, has full operation in consequence of the omission of a multitude of acts, whose various and often contradictory provisions (so far as they could be reconciled) were consolidated into single bills; in the formation of which the date of the original law, and not only the date, but the alterations produced by amendatory acts, have unavoidably been lost sight of. Hence, the late code can only be considered as operating upon cases subsequent to the revisal; for a knowledge of the law antecedent thereto, the student must hunt through five other partial compilations*, or through the scattered pages of

* Pur vis's collection of the Laws of Virginia . .. . 1684

Park's Edition ........ . 1733

Hunters's edition ......... 1753

Rind and Purdie's ........ 1769

Nicolson and Prentis's ........ 1785

•The three first are rarely to be met with. — and the two last are now-growing

scarce.

the unbound Sessions's acts, scarcely less difficult to be collected than the leaves of the Sybils. To assist his labours, and often to supply the want of a law which no diligence might enable him to procure, was deemed an object of no small importance. And here we may be permitted to remark, that the settlement of this country is too recent not to render that policy very questionable, which consigns to oblivion not only temporary and occasional acts, but the laws which regulate personal property, (which have, perhaps without intention, been repeatedly altered and omitted) and even those, by which the tides to lands have been originally acquired, and are still held; not to mention those, by which counties have been divided, courts established, records removed, and a multitude of other arrangements made, altered, and repealed; so as to render a complete acquaintance with the laws of this country, one of the most difficult of human acquirements. A general view of such of the omitted laws as relate to the original acquisition, and subsequent disposal of lands, and other estates of persons dying intestate would well deserve the attention of the student; and although most of them are now out of print, a bare enumeration of their titles, with the periods of

their enaction, suspension, or repeal, might be of singular use to those whose interests are likely to be affected by their temporary existence. In researches of this nature a stock of knowledge is acquired whose value is the more precious as it becomes more scarce. To form a complete digest of statute law appears to have been a favourite object with the legislature of Virginia

from its first settlement.... but unfortunately every attempt of the kind seems to have been the parent of. new perplexities, by the introduction of new laws; and the re-enaction, omission,

or suspension of former acts, whose operation is thus rendered doubtful, even in the most important cases. It has been supposed, for instance, that whenever the legislature have had a bill before them, the rejection of any particular clause therein contained is to be considered as a declaration of the legislative will, that the part rejected shall not be law; or if it be law already, that it shall thenceforth cease to be the law of the land: but will it be supposed that it was the intention of the legislature in 1792, when they struck the act of 1788, c. 23. out of the slave law, to repeal that act, by which the act of 1748, declaring that a person

guilty of the manslaughter of a slave should incur no punishment

for it, had been but a few years before repealed; under circumstances which excited a just horror that such an act should so long have disgraced our code. On the other hand, would it not probably be equally wide of the truth to presume it was the intention of the legislature to continue in force those parts of the act of 1748, which were also stricken out of the same bill, in the year 1792, and by which the outlawing and shooting of run-away slaves had been formerly authorised? Though no general rule can therefore be laid down upon this subject, it appeared practicable to assist the student in forming a tolerably just conclusion in particular cases. To aid his researches in the several instances before pointed out, was another object of the Editor's undertaking.

Such being the outlines of his plan, he entered upon the execution of it with a zeal, which, if it had been seconded with equal ability, would doubtless have produced a valuable system of FEDERAL and STATE JURISPRUDENCE, so far at least as relates to the COMMONWEALTH of VIRGINIA..... to have engrafted the laws of all the states in the union, was a work too extensive in the plan, and would have been too voluminous in its execution for him to undertake, whatever might have been his aids, or his talents for such an undertaking: he therefore contented himself with the hope of being particularly useful to the students of law in his own state, and generally so, to those in other states, who were solicitous to become acquainted with the principles of the constitution of the federal government, and the general laws of the union.

Before he concludes, it may not be improper to add a few remarks on the study of the law in this country. If it be true that those nations which have been most distinguished for science, have been also most distinguished for the freedom they have enjoyed, the conclusion would immediately follow that liberty and science were inseparable companions. But here an objection immediately presents itself, that illiterate and barbarous nations are found to possess a greater portion of freedom, in their constitutions and government, than is to be met with in any civilized nation whatsoever. The ancient Gauls and their neighbours the Germans, not to mention other barbarous

nations, appear to have lived under a kind of government as free as that of the Indians of this continent, and were equally strangers to literature and to science. But with these and all other barbarous nations, government hath always been a most simple machine, adapted to very few purposes, and those such as might obviously be effected by the aid of a simple contrivance. Their dress, their houses, their mode of living, and their mode of warfare, all partook of the same simplicity. An itinerant nation, or one living in common, would have few ideas respecting the rights of property; their martial temper rendered every individual the arbiter, asserter, and avenger of his own personal rights. Hence very few cases occurred where there could be room for the authority of the civil magistrate to interfere: such magistrates, therefore, appear to have been unknown among them: even their military chiefs seem to have possessed no personal authority but in war, and it is not improbable that their military institutions partook in an eminent degree of the simplicity of the civil. The principles, upon which the government, whether civil or military, was to be administered, being few and simple, were easily understood. Government in this state may be compared to a seedling oak, that has just burst the acorn and appears above the surface of the earth with its first leaves; it advances with civilization, rears its head in proportion as the other increases; and puts forth innumerable branches till it covers the earth with an extensive shade, and is finally regarded as the king of the forest: all behold it with reverence, few have any conception of its magnitude, or of the dimensions, or number of its parts; few are acquainted with the extent of its produce, or can compare the benefits derived from its shade, with the loss of soil which it appropriates to its own support. In such a state, in vain would the rude hand of the barbarian attempt to trace its figure; science, only, is equal to the task, and, even she will find it painful, laborious, and incessant; since every year is the parent of new branches, or the destroyer of old ones: nor will a superficial observation of its exterior alone, suffice; the roots may be decayed, the trunk hollow, and the monarch of the forest ready to fall with its own rottenness and weight, at the moment that its enormous bulk, extensive branches, and luxuriant foliage would seem to promise a millennial duration.

Moreover, society and civilization create a thousand relations unknown to savage life: these are extended and diversified in such a manner that the machine of government becomes necessarily more complex in its parts, in proportion as its functions are multiplied. Those who administer it acquire a mechanical acquaintance with its powers, and often, by a slight alteration in the frame, produce an entire revolution in the principles of its action; to detect the cheat requires a thorough acquaintance with the principles of its original construction, and the purposes to which it was intended to be applied. Hence the facility with which governments, free in their institution, have been overturned by the usurpations, or contrivances, of those, to whom the administration of them hath been committed. Science counteracts this mechanical monopoly of knowledge, and unfolds to its votaries those principles which ought to direct the operations of the machine; discloses the application of other powers, and demonstrates the source from which they spring, and the effect they are calculated to produce. Hence, since the introduction of letters, those nations, which have been most eminent in science, have been most distinguished by freedom. Man only requires to understand his rights to estimate them properly: the ignorance of the people is the footstool of despotism.

The study of the law may seem in all countries, in some degree, to be connected with the study of the constitution of the nation. Yet in arbitrary governments questions concerning the constitution rarely occur, and are still more rarely discussed;

hence in such governments the study of the law, merely as a profession, does not seem necessarily to require the study of the constitution; the former being limited to such controversies between individuals, as do not involve in them any question of the authority of the government itself: and the latter being supposed to be a theme too exalted for the comprehension of a private individual, and as such discouraged and neglected, until time or accident hath directed the attention of men of talents to a subject so important to the happiness of mankind. But in America the force and obligation of every positive law, and of every act of government, are so immediately blended with the authority of the government itself, as confided by the people

to those who administer it, that no man can pretend to a knowledge of the laws of his country, who doth not extend that knowledge to the constitution itself. Yet the study of the constitution is not more necessary to the right understanding of the force and obligation of any positive law, than the study of the law, as a science, is to a full and perfect understanding of the constitution: for the rules of law must not unfrequently be consulted, to explain the principles contained in the constitution:

thus, they mutually contribute to the due investigation and understanding of each other.

In a government founded on the basis of equal liberty among all its citizens, to be ignorant of the law and the constitution, is to be ignorant of the rights of the citizen. Ignorance is invariably the parent of error: where it is blended with a turbulent and unquiet temper, it infallibly produces licentiousness, the most terrible enemy to liberty, except despotism: and even more terrible than despotism itself, were it not invariably short lived, whilst the other endures for ages; on the contrary, when ignorance is united with supineness, liberty becomes lethargic, and despotism erects her standard without opposition. An enlightened people, who have once attained the blessings of a free government, can never be enslaved until they abandon virtue and relinquish science. These are the nurses of infant liberty and its fostering genii when matured. To seek their favour is to secure it; to neglect, is infallibly to lose it.

If an acquaintance with the constitution and laws of our country be requisite to preserve the blessings of freedom to the people, it necessarily follows that those who are to frame laws or administer the government should possess a thorough knowledge of these subjects. For what can be more absurd than that a person wholly ignorant of the constitution should presume to make laws pursuant thereto? or that one who neither understands the constitution nor the law, should boldly adventure to administer the government! Yet such instances occur not unfrequently in all countries, and the danger that they will frequently occur in this, is perhaps greater than in any other. The road to office, in most other countries is filled with a thousand turn-

pikes, which are rarely opened but to the rich and powerful. These possess at least the means of education and information. With us it is equally open to all; but men of talents and virtue are not always the foremost in the course; persons of this description are generally more backward, than those of inferior pretensions, to the confidence of the people; a confidence which, if they do not, they are infinitely more liable to abuse, than if their minds had been properly enlightened by study and application.

Not only the study of the constitution, but an acquaintance with the civil history of our country, seems necessary to constitute a thorough knowledge of its laws. The several epochs required to be well known, when the laws of England were the sole rule of jurisprudence among us; or were interwoven with the laws of our own institution; which last were nevertheless considered in a subordinate degree of authority; or when the authority of the former was wholly superseded, and the latter substituted entirely in their stead, without any check or controul;

and, lastly, when by an entire change of the government a new order of things was introduced, and the authority of a part of the laws of the commonwealth were submitted to the controul of the federal constitution, and jurisprudence; otherwise the student can never be certain of the validity of a law, but must wander perpetually in the mazes of doubt and error. To assist his researches in all these respects has been particularly the object of the Editor's labours; in submitting the result of them to the public, he is not without hope that the design will be approved, however the execution may fall short of his own wishes, or the public expectation.

ST. GEO. TUCKER. July 10th, 1802.

COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE FIRST.

PART THE FIRST.

ABBREVIATIONS

USED IN THE NOTES AND APPENDICES TO THIS EDITION.

INTRODUCTION.

C. U. S. Constitution of the United States.

L. U. S. Laws of the United States.

A. C. U. S. or Amendts. C. U. S. Amendments to the Constitution

of the United States. C. V. Constitution of Virginia. B. R. or B. R. V. Bill of Rights, of Virginia. V. L. or L. V. Laws of Virginia. Sess. Acts. Sessions Acts, of Congress, or of the General Assembly

of Virginia.

Purvis. Compilation of the Laws of Virginia, by Purvis, or Pervis. L. V. Edi. 1733. 1753. 1769. 1785. 1794. The several Editions of

the Laws of Virginia, published by authority, in those years,

respectively.

N. B. The references to the laws of the United States correspond with the Chapters, as numbered in the Acts of the several Sessions, which have been distributed according to Law. The Acts of 2. Cong. 2. Sess. in Swift's Edition are numbered differently: there is a variance of 44 Chapters in the numbering of the Acts of that Session; but, any Act of that Session referred to in this Edition, may be readily found by adding 44 to the number of the Chapter in that Edition.

OF THE

STUDY, NATURE, AND EXTENT,

OF THE

LAWS OF ENGLAND.

INTRODUCTION.

SECTION THE FIRST.

ON THE STUDY OF THE LAW*.

MR. VICE-CHANCELLOR, AND GENTLEMEN OF THE UNIVERSITY,

THE general expectation of so numerous and respectable an audience, the novelty, and (I may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. He must be sensible how much will depend upon his conduct in the infancy of a study which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical elementary parts have hitherto received a very moderate share of cultivation. He cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a time the public-spirited design of our wise and munificent benefactor. And this he must more especially dread, when he feels by experience how unequal his abilities are (unassisted by preceding examples) to complete, in the manner he could wish, so extensive and arduous a task; since he freely confesses, that his former more private attempts have fallen very short of his own ideas

* Read in Oxford, at the opening of the Vinerian lectures: 25 Oct. 1758.

of perfection. And yet the candour he has already experienced, and this last transcendent mark of regard, his present nomination by the free and unanimous suffrage of a great and learned university, (an honour to be ever remembered with the deepest and most affectionate gratitude,) these testimonies of your public judgment must entirely supersede his own, and forbid him to believe himself totally insufficient for the labour at least of this employment. One thing he will venture to hope for, and it certainly shall be his constant aim, by diligence and attention to atone for his other defects; esteeming, that the best return, which he can possibly make for your favourable opinion of his capacity, will be his unwearied endeavours in some little degree to deserve it.

The science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowledge, in which the gentlemen of England have been more remarkably deficient than those of all Europe besides. In most of the nations on the continent, where the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of Justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. And in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowledge in that science, which is to be the guardian of his natural rights and the rule of his civil conduct.

Nor have the imperial laws been totally neglected even in the English nation. A general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman; and a fashion has prevailed, especially of late, to transport the growing hopes of this island to foreign universities, in Switzerland, Germany, and Holland; which, though infinitely inferior to our own in every other consideration, have

been looked upon as better nurseries of the civil, or (which is nearly the same) of their own municipal law. In the mean time it has been the peculiar lot of our admirable system of laws, to be neglected, and even unknown, by all but one practical profession, though built upon the soundest foundations, and approved by the experience of ages.

Far be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason. No man is more thoroughly persuaded Of the general excellence of it's rules, and the usual equity of it's decisions, nor is better convinced of it's use as well as ornament to the scholar, the divine, the statesman, and even the common lawyer. But we must not carry our veneration so far as to sacrifice our Alfred and Edward to the manes of Theodosius and Justinian; we must not prefer the edict of the praetor, or the rescript of the Roman emperor, to our own immemorial customs or the sanctions of an English parliament; unless we can also prefer the despotic monarchy of Rome and Byzantium, for whose meridians the former were calculated, to the free constitution of Britain, which the latter are adapted to perpetuate.

Without detracting therefore from the real merit which abounds in the imperial law, I hope I may have leave to assert, that if an Englishman must be ignorant of either the one or the other, he had better be a stranger to the Roman than the English institutions. For I think it an undeniable position, that a competent knowledge of the laws of that society in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, I had almost said essential, part of liberal and polite education. And in this I am warranted by the example of ancient Rome; where, as Cicero inform us,a the very boys were obliged to learn the twelve tables by heart as a carmen necessarium, or indispensable lesson, to imprint on their tender minds an early knowledge of the laws and constitution of their country.

But as the long and universal neglect of this study, with us in England, seems in some degree to call in question the truth

a De Legg. 2. 23.

of this evident position, it shall therefore be the business of this introductory discourse, in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out it's particular uses in all considerable situations of life. Some conjectures will then be offered with regard to the causes of neglecting this useful study; to which will be subjoined a few reflections on the peculiar propriety of reviving it in our own universities.

And, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land, which is governed by this system of laws. A land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution.b This liberty, rightly understood consists in the power of doing whatever the laws permit;c which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest, As therefore every subject is interested in the preservation of the laws, it is incumbent upon every man to be acquainted with those at least with which he is immediately concerned; lest he incur the censure, as well as inconvenience, of living in society without knowing the obligations which it lays him under. And thus much may suffice for persons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted sphere in which they are appointed to move. But those on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused; These advantages are given them, not for the benefit of themselves only, but also of the public; and yet they cannot, in any scene of life, discharge properly their duty either to the public or themselves, without some degree of knowledge in the laws. To evince this the more clearly, it may not be amiss to descend to a few particulars.

Let us therefore begin with our gentlemen of independent estates and fortune, the most useful as well as considerable body

b Montesq Esp. L. 1.11. c. 5. c Facultas ejus, quod cuique facere, libet, nisi quid vi, aut jure prohibetur. Inst. 1.3 1.

of men in the nation; whom even to suppose ignorant in this branch of learning is treated by Mr. Locked as a strange absurdity. It is their landed property, with it's long and voluminous train of descents and conveyances, settlements, entails and incumbrances, that forms the most intricate and most extensive object of legal knowledge. The thorough comprehension of these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by profession; yet still the understanding of a few leading principles, relating to estates and conveyancing, may form some check and guard upon a gentleman's inferior agents, and preserve him at least from very gross and notorious imposition.

Again, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more with regard to their attestation. An ignorance in these must always be of dangerous consequence, to such as by choice or necessity compile their own testaments without any technical assistance. Those who have attended the courts of justice are the best witnesses of the confusion and distresses that are hereby occasioned in families; and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all; so that in the end his estate may often be vested quite contrary to these his enigmatical intentions, because perhaps he has omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires.

But to proceed from private concerns to those of a more public consideration. All gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of their fellow-subjects, by serving upon juries. In this situation they have frequently a right to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite;

d Education, §. 187.

especially where the law and the fact, as it often happens, are intimately blended together. And the general incapacity, even of our best juries, to do this with any tolerable propriety, has greatly debased their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended.

But it is not as a juror only that the English gentleman is called upon to determine questions of right, and distribute justice to his fellow-subjects; it is principally with this order of men that the commission of the peace is filled. And here a very ample field is opened for a gentleman to exert his talents, by maintaining good order in his neighbourhood; by punishing the dissolute and idle; by protecting the peaceable and industrious;

and above all, by healing petty differences and preventing vexatious prosecutions. But in order to attain these desirable ends, it is necessary that the magistrate should understand his business;

and have not only the will, but the power also, (under which must be included the knowledge) of administering legal and effectual justice. Else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his inferiors, and of censure from those to whom he is accountable for his conduct.

Yet farther; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament: and those, who are ambitious of receiving so high a trust, would also do well to remember it's nature and importance. They are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates, or their domestics; that they may list under party banners; may grant or with-hold supplies; may vote with or vote against a popular or unpopular administration; but upon considerations far more interesting and important. They are the guardians of the English constitution; the makers, repealers, and interpreters of the English laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid

and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation. And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old I what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments!

Indeed it is perfectly amazing, that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commmercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professors of the laws: but every man of superior fortune thinks himself born a legislator. Yet Tully was of a different opinion;

it is necessary, says he,e for a senator to be thoroughly acquainted with the constitution; and this, (he declares,) is a knowledge of the most extensive nature; a matter of science, of diligence, of reflexion; without which no senator can possibly be fit for his office."

The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently it's symmetry has been destroyed, it's proportions destorted, and it's majestic simplicity exchanged for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays, (which have sometimes disgraced the English, as well as other courts of justice)

e De Legg. 3.18. Est senatori necessarium nosse rempublicam; idque late patet: ... genus hoc omne scientiae, diligentiae, memoriae est, sine quo paratus esse senator millo pacto potest.

owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament; "overladen (as sir Edward Coke expresses itf) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law." This great and well experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. "But if," he subjoins, "acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided remedy for former mischiefs, and defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do." And if this inconvenience was so heavily felt in the reign of queen Elizabeth, you may judge how the evil is increased in later times, when the statute book is swelled to ten times a larger bulk: unless it should be found, that the penners of our modern statutes have proportionably better informed themselves in the knowledge of the common law.

What is said of our gentlemen in general, and the propriety of their application to the study of the laws of their country, will hold equally strong or still stronger with regard to the nobility of this realm, except only in the article of serving upon juries. But, instead of this, they have several peculiar provinces of far greater consequence and concern; being not only by birth hereditary counsellors of the crown, and judges upon their honour of the lives of their brother peers, but also arbiters of the property of all their fellow-subjects, and that in the last resort. In this their judicial capacity they are bound to decide the nicest and most critical points of the law: to examine and correct such errors as have escaped the most experienced sages of the profession, the lord keeper and the judges of the courts at West-f 2 Rep. pref.

minster. Their sentence is final, decisive, irrevocable: no appeal, no correction, not even a review, can be had: and to their determination, whatever it be, the inferior courts of justice must conform; otherwise the rule of property would no longer be uniform and steady.

Should a judge in the most subordinate jurisdiction be deficient in the knowledge of the law, it would reflect infinite contempt upon himself, and disgrace upon those who employ him. And yet the consequence of his ignorance is comparatively very trifling and small: his judgment may be examined, and his errors rectified, by other courts. But how much more serious and affecting is the case of a superior judge, if without any skill in the laws he will boldly venture to decide a question, upon which the welfare and subsistence of whole families may depend! where the chance of his judging right, or wrong, is barely equal; and where, if he chances to judge wrong, he does an injury of the most alarming nature, an injury without possibility of redress!

Yet, vast as this trust is, it can no where be so properly reposed, as in the noble hands where our excellent constitution has placed it: and therefore placed it, because, from the independence of their fortune and the dignity of their station, they are presumed to employ that leisure which is the consequence of both, in attaining a more extensive knowledge of the laws than persons of inferior rank: and because the founders of our polity relied upon that delicacy of sentiment, so peculiar to noble birth; which, as on the one hand it will prevent either interest or affection from interfering in questions of right, so on the other it will bind a peer in honour, an obligation which the law esteems equal to another's oath, to be master of those points upon which it is his birthright to decide.

The Roman pandects will furnish us with a piece of history not unapplicable to our present purpose. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occasion to take the opinion of Quintus Mutius Scaevola, the then oracle of the Roman law; but, for want of some knowledge

in that science, could not so much as understand even the technical terms, which his friend was obliged to make Use of. Upon which Mutius Scaevola could not forbear to upbraid him with this memorable reproofs,g "that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned." This reproach made so deep an impression on Sulpicius, that he immediately applied himself to the study of the law; wherein he arrived to that proficiency, that he left behind him about an hundred and fourscore volumes of his own compiling upon the subject; and became, in the opinion of Cicero,h a much more complete lawyer than even Mutius Scaevola himself.

I would not be thought to recommend to our English nobility and gentry, to become as great lawyers as Sulpicius; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a wise indefatigable senator;

but the inference which arises from the story is this, that ignorance of the laws of the land hath ever been esteemed dishonourable in those, who are entrusted by their country to maintain, to administer, and to amend them.

But surely there is little occasion to enforce this argument any farther to persons of rank and distinction, if we of this place may be allowed to form a general judgment from those who are under our inspection; happy, that while we lay down the rule, we can also produce the example. You will therefore permit your professor to indulge both a public and private satisfaction, by bearing this open testimony; that in the infancy of these studies among us, they were favoured with the most diligent attendance, and pursued with the most unwearied application, by those of the noblest birth and most ample patrimony; some of whom are still the ornaments of this seat of learning; and others at a greater distance continue doing honour to it's institutions, by comparing our polity and laws with those of other kingdoms abroad, or exerting their senatorial abilities in the councils of the nation at home.

g Ff 1. 2. 2. §. 43. Turpe esse patricio, et nobili, et causas oranti, jus in quo versaretur ignorare.

h Brut. 41.

Nor will some degree of legal knowledge be found in the least superfluous to persons of inferior rank; especially those of the learned professions. The clergy in particular, besides the common obligations they are under in proportion to their rank and fortune, have also abundant reason, considered merely as clergymen, to be acquainted with many branches of the law, which are almost peculiar and appropriated to themselves alone. Such are the laws relating to advowsons, institutions, and inductions; to simony, and simoniacal contracts; to uniformity, residence, and pluralities; to tithes and other ecclesiastical dues;

to marriages (more especially of late) and to a variety of other subjects, which are consigned to the care of their order by the provisions of particular statutes. To understand these aright, to discern what is warranted or enjoined, and what is forbidden by law, demands a sort of legal apprehension; which is no otherwise to be acquired, than by use and a familiar acquaintance with legal writers.

For the gentlemen of the faculty of physic, I must frankly own that I see no special reason, why they in particular should apply themselves to the study of the law; unless in common with other gentlemen, and to complete the character of general and extensive knowledge; a character which their profession, beyond others, has remarkably deserved. They will give me leave however to suggest, and that not ludicrously, that it might frequently be of use to families upon sudden emergencies, if the physician were acquainted with the doctrine of last wills and testaments, at least so far as relates to the formal part of their execution.

But those gentlemen who intend to profess the civil and ecclesiastical laws, in the spiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indispensably obliged to apply themselves seriously to the study of our municipal laws. For the civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom: they are no more binding in England than our laws are binding at Rome. But as far as these foreign laws on account of some peculiar propriety, have in some particular cases, and in some particular courts, been introduced and al-

lowed by our laws, so far they oblige, and no farther; their authority being wholly founded upon that permission and adoption. In which we are not singular in our notions: for even in Holland, where the imperial law is much cultivated and it's decisions pretty generally followed, we are informed by Van Leeuwen,i that "it receives it's force from custom and the consent of the people, either tacitly or expressly given: for otherwise, he adds, we should no more be bound by this law, than by that of the Almains, the Franks, the Saxons, the Goths, the Vandals, and other of the antient nations." Wherefore, in all points in which the different systems depart from each other, the law of the land takes place of the law of Rome, whether ancient or modem, imperial or pontifical. And, in those of our English courts wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themselves to other matters than are permitted to them; or if such courts proceed according to the decisions of those laws, in cases wherein it is controlled by the law of the land the common law in either instance both may, and frequently does prohibit and annul their proceedings:k and it will not be a sufficient excuse for them to tell the king's courts at Westminster, that their practice is warranted by the laws of Justinian or Gregory, or is conformable to the degrees of the Rota or imperial chamber. For which reason it becomes highly necessary for every civilian and canonist, that would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cases and how far the English laws have given sanction to the Roman; in what points the latter are rejected; and where they are both so intermixed and blended together as to form certain supplemental parts of the common law of England distinguished by the titles of the king's maritime, the king's military, and the king's ecclesiastical law. The propriety of which inquiry the university of Oxford has for more than a century so thoroughly seen, that in her statutesl she appoints, that one of the three questions to be annually discussed at the act by the jurist-inceptors shall relate to the common law; subjoining this reason, "quia

i Dedicatio corporis juris civilis. Edit. 1663.

k Hale Hist. C.L c 2 Selden in Fletam. 5 Rep. Caudrey's case. 2 Inst. 599.

l Tit. VII. Sect. 2. §. 2.

juris civilis studiosos decet haud imperitos esse juris municipalis, et differentias exteri patriique juris notas habere." And the statutes m of the university of Cambridge speak expressly to the same effect.

From the general use and necessity of some acquaintance with the common law, the inference were extremely easy with regard to the propriety of the present institution, in a place to which gentlemen of all ranks and degrees resort, as the fountain of all useful knowledge. But how it has come to pass that a design of this sort has never before taken place in the university, and the reason why the study of our laws has in general fallen into disuse, I shall previously proceed to enquire.

Sir John Fortescue, in his panegyric on the laws of England (which was written in the reign of Henry the sixth) putsn a very obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning: "why the laws of England, being so good, so fruitful, and so commodious, are not taught in the universities, as the civil and canon laws are?" In answer to which he giveso what seems, with due deference be it spoken, a very jejune and unsatisfactory reason; being in short, that "as the proceedings at common law were in his time carried on in three different tongues, the English, the Latin, and the French, that science must be necessarily taught in those three several languages; but that in the universities, all sciences were taught in the Latin tongue only;" and therefore he concludes, "that they could not be conveniently taught or studied in our universities." But without attempting to examine seriously the validity of this reason, (the very shadow of which by the wisdom of your late constitutions is entirely taken away,) we perhaps may find out a better, or at least a more plausible, account, why the study of the municipal laws has been banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil.

m Doctor legum mox a doctoratu dabit operam legibus Angliae, ut non sit imperitus carum legum quas habet sua patria, et differentias exteri patriique juris noscat Stat, Eliz. R c. 14. Cowel. Institut. in proemio.

That antient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the Norman conquest. This had endeared it to the people in general, as well because it's decisions were universally known, as because it was found to be excellently adapted to the genius of the English nation. In the knowledge of this law consisted great part of the learning of those dark ages; it was then taught, says Mr. Selden,p in the monasteries; in the universities, and in the families of the principal nobility. The clergy in particular, as they then engrossed almost every other branch of learning, so (like their predecessors the British Druidsq) they were peculiarly remarkable for their proficiency in the study of the law. Nullus clericus nisi causidicus, is the character given of them soon after the conquest by William of Malmsbury.r The judges therefore were usually created out of the sacred order,s as was likewise the case among the Normans;t and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day.

But the common law of England, being not committed to writing; but only handed down by tradition, use, and experience, was not so heartily relished by the foreign clergy; who came over hither in shoals during the reign of the conqueror and his two sons, and were utter strangers to our constitution as well as our language. And an accident, which soon after happened, had nearly completed it's ruin. A copy of Justinian's

p in Fletam. 7.7.

q Caesar de bello Gal. 6.12.

r de gest. reg. I. 4.

s Dugdale Orig. jurid. c. 8.

t Les juges sont sages personnel et autentiques.... sicome les archevesques, evesques les chanoines des eglises cathedraulx, et les autres personnes qui ont dignitez in saincte eglise; les abbez, les prieurs conventaulx, et les gouverneurs des eglises, &c. Grand Coustumier, ch. 9.

pandects, being newlyu discovered at Amalfi, soon brought the civil law into vogue all over the west of Europe, where before it was quite laid asidew and in a manner forgotten; though some traces of it's authority remained in Italyx and the eastern provinces of the empire.y This now became in a particular manner the favourite of the popish clergy, who borrowed the method and many of the maxims of their canon law from this original. The study of it was introduced into several universities abroad, particularly that of Bologna; where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches of science: and many nations on the continent, just then beginning to recover from the convulsions consequent upon the overthrow of the Roman empire, and settling by degrees into peaceable forms of government, adopted the civil law, (being the best written system then extant) as the basis of their several constitutions; blending and interweaving it among their own feodal customs, in some places with a more extensive, in others a more confined authority.z

Nor was it long before the prevailing mode of the times reached England. For Theobald, a Norman abbot, being elected to the see of Canterbury,a and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and among the rest Roger sirnamed Vacarius, whom he placed in the university of Oxford,b to teach it to the people of this country. But it did not meet with the same easy reception in England, where a mild and rational system of laws had been established, as it did upon the continent; and, though the monkish clergy (devoted to the will of a foreign primate) received it with eagerness and zeal, yet the laity, who were more interested to preserve the old constitution, and had already se-

u circ. A. D. 1130. w LL. Wisigoth. 2. 1, 9. x Capitular. Hludov. Pli. 4. 102. y Selden in Fletam. 5. 5.

z Domat's treatise of law, c. 13. §. 9. Epistol. Innocent. IV. in M. Paris ad A. D. 1254.

a A. D. 1138. b Gervas. Dorobern. Act. Pontif. Cantuar. col. 1665.

verely felt the effect of many Norman innovations, continued wedded to the use of the common law. King Stephen immediately published a proclamation,c forbidding the study of the laws, then newly imported from Italy; which was treated by the monksd as a piece of impiety, and, though it might prevent the introduction of the civil law process into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monasteries.

From this time the nation seems to have been divided into two parties; the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil and canon law, which now came to be inseparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law: both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowing the opposite system that real merit which is abundantly to be found in each. This appears, on the one hand, from the spleen with which the monastic writerse speak of our municipal laws upon all occasions; and, on the other, from the firm temper which the nobility shewed at the famous parliament of Merton: when the prelates endeavoured to procure an act, to declare all bastards legitimate in case the parents intermarried at any time afterwards; alleging this only reason, because holy-church (that is, the canon law) declared such children legitimate: but "all the earls and barons (says the parliament rollf) with one voice answered, that they would not change the laws of England, which had hitherto been used and approved." And we find the same jealousy prevailing above a century afterwards,g when the nobility declared with a kind of prophetic spirit, "that the realm of England hath never been unto this hour, neither by the consent of our lord the king and the lords of parliament shall it ever be, ruled or

c Rog. Bacon citat. per Selden in Fletam. 7 6. in Fortesc. c. 33. & 8 Rep. Pref. d Joan. Sarisburiens. Polycrat. 8. 22. e Idem, ibid. 5.16 Polydor. Virgil. Hist. I. 9. f Stat. Merton. 20 Hen. III. c. 9. Et omnes comites et barones una voce responderunt, quod nolunt leges Angliae mutare, quae bucusque usitatae sunt et approbatae. g 11 Ric. II.

governed by the civil law."h And of this temper between the clergy and laity many more instances might be given.

While things were in this situation, the clergy, finding it impossible to root out the municipal law, began to withdraw themselves by degrees from the temporal courts: and to that end, very early in the reign of king Henry the third, episcopal constitutions were published,i forbidding all ecclesiastics to appear as advocates in foro saeculari: nor did they long continue to act as judges there, not caring to take the oath of office which was then found necessary to be administered, that they should in all things determine according to the law and custom of this realm;k though they still kept possession of the high office of chancellor, an office then of little juridical power; and afterwards, as it's business increased by degrees, they modelled the process of the court at their own discretion.

But wherever they retired and wherever their authority extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion of the municipal law. This appears in a particular manner from the spiritual courts of all denominations, from the chancellor's courts in both our universities, and from the high court of chancery before mentioned; in all of which the proceedings are to this day in a course much conformed to the civil law: for which no tolerable reason can be assigned, unless that these courts were all under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law; pope Innocent the fourth having forbiddenl the very reading of it by the clergy because it's decisions were not founded on the imperial constitutions, but merely on the customs of the laity. And if it be considered, that our universities began about that period to receive their present form of scholastic discipline; that they were then, and continued to be till the time of the reformation, entirely under the influence of the popish clergy; (sir John Mason

h Selden. Jan. Anglor. I. 2. §. 43. in Fortesc. c. 33. i Spelman. Concil. A. D. 1217. Wilkins, vol. 1. p. 574. 599, k Selden in Fletam. 9. 3. 1 M. Paris ad A. D. 1254.

the first protestant, being also the first lay, chancellor of Oxford) this will lead us to perceive the reason, why the study of the Roman laws was in those days of bigotrym pursued with such alacrity in these seats of learning; and why the common law was entirely despised, and esteemed little better than heretical.

And, since the reformation, many causes have conspired to prevent it's becoming a part of academical education. As, first, long usage and established custom; which, as in every thing else, so especially in the forms of scholastic exercise, have justly great weight and authority. Secondly, the real intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth and their total ignorance of the merit of the common law, though it's equal at least, and perhaps an improvement on the other. But the principal reason of all, that has hindered the introduction of this branch of learning, is, that the study of the common law, being banished from hence in the times of popery, has fallen into a quite different channel, and has hitherto been wholly cultivated in another place. But as the long usage and established custom, of ignorance of the laws of the land, begin now to be thought unreasonable; and as by these means the merit of those laws will probably be more generally known; we may hope that the method of studying them will soon revert to it's antient

m There cannot be a stronger instance of the absurd and superstitious veneration that was paid to these laws, than that the most learned writers of the times thought they could not form a perfect character, even of the blessed virgin, without making her a civilian and a canonist. Which Albertus Magnus, the renowned dominican doctor of the thirteenth century, thus proves in his Summa de laudibus christiferae virginis (divinum magis quam humanum opus) qu. 23. §. 5. "Item quod jura civilia, & leges, & decreta scivit in summo, probatur hoc modo: sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem justum & sapientem; secundo, quod contra advertarium astutum & sagacem; tertio, quod in causa desperata: sed beatissima virgo, contra judicem sapientissimum, Dominum, contra adversarium callidissimum, dyabolum, in causa nostra desperata; sententiam optatam, obtinuit'' To which an eminent franciscan, two centuries afterwards, Bernardinus de Busti (Mariale, part. 4. serm. 9.) very gravely subjoins this note. "Nec videtur incongruum mulieres habere peritiam juris. Legitur enim de uxore Joannis Andi eae glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit."

course, and the foundations at least of that science will be laid in the two universities; without being exclusively confined to the channel which it fell into at the times I have just been describing.

For, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen: who entertained upon their parts a most hearty aversion to the civil law,n and made no scruple to profess their contempt, nay even their ignoranceo of it, in the most public manner. But still, as the balance of learning was greatly on the side of the clergy, and as the common law was no longer taught, as formerly, in any part of the kingdom, it must have been subjected to many inconveniencies, and perhaps would have been gradually lost and overrun by the civil, (a suspicion well justified from the frequent transcripts of Justinian to be met with in Bracton and Fleta) had it not been for a peculiar incident, which happened at a very critical time, and contributed greatly to it's support.

The incident which I mean was the fixing the court of common pleas, the grand tribunal for disputes of property, to be held in one certain spot; that the seat of ordinary justice might be permanent and notorious to all the nation. Formerly that, in conjunction with all the other superior courts, was held before the king's capital justiciary of England, in the aula regis, or such of his palaces wherein his royal person resided; and

n Fortesc. de laud. LL. c. 25.

o This remarkably appeared in the case of the abbot of Torun. M. 22. Edw. III. 24. who had caused a certain prior to be summoned to answer at Avignon for erecting an oratory contra inhibitionem novi operis; by which words Mr. Selden, (in Flet. 8. 5.) very justly understands to be meant the tide de novi operis nuntiatione both in the civil and canon laws, (Ff 39. 1. C. 8. 11. and Decretal. not Extrav. 5. 32.) whereby the erection of any new buildings in prejudice of more antient ones was prohibited. But Skipwith the king's serjeant and afterwards chief baron of the exchequer, declares them to be flat nonsense;

"in ceux parolx, contra inhibitionem novi operis, ny ad pas entendment:" and justice Schardelow mends the matter but little by informing him, that they signify a restitution in their law: for which reason he very sagely resolves to pay no sort of regard to them. "Ceo n'est que un restitution en lour ley, par que a ceo n'avomus regard, &c."

removed with his household from one end of the kingdom to the other. This was found to occasion great inconvenience to the suitors; to remedy which it was made an article of the great charter of liberties, both that of king John and king Henry the third,p that "common pleas should no longer follow the king's court, but be held in some certain place:" in consequence of which they have ever since been held (a few necessary removals in times of the plague excepted) in the palace of Westminster only. This brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a society was established of persons, who, (as Spelmanq observes) addicting themselves wholly to the study of the laws of the land, and no longer considering it as a mere subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of perfection, which they suddenly attained under the auspices of our English Justinian, king Edward the first.

In consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it necessary to establish a new university of their own. This they did by purchasing at various times certain houses (now called the inns of court and of chancery) between the city of Westminster, the place of holding the king's courts, and the city of London; for advantage of ready access to the one, and plenty of provisions in the other.r Here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil. The degrees were those of barristers (first stiled apprenticess from apprendre, to learn) who answered to our bachelors: as the state and degree of a serjeant,t servientis ad legem, did to that of doctor.

p c. 11. q Glossar. 334. r Fortesc. c 48.

s Apprentices or barristers seem to have been first appointed by an ordinance of king Edward the first in parliament, in the 20th year of his reign, (Spelm. Glos. 37. Dugdale, Orig. jurid. 55.)

t The first mention which I have met with in our lawbooks of serjeants or countors, is in the statute of Westm. 1. 3 Edw. I. c. 29. and in Horn's Mirror, c 1. §. 10. c. 2. §. 5. c. 3. §. 1. in the same reign. But M. Paris in his life of

The crown seems to have soon taken under it's protection this infant seminary of common law; and, the more effectually to foster and cherish it, king Henry the third in the nineteenth year of his reign issued out an order directed to the mayor and sheriffs of London, commanding that no regent of any law schools within that city should for the future teach law therein.u The word, law, or leges, being a general term, may create some doubt at this distance of time whether the teaching of the civil law, or the common, or both, is hereby restrained. But in either case it tends to the same end. If the civil law only is prohibited, (which is Mr, Selden'sw opinion) it is then a retaliation upon the clergy, who had excluded the common law from their seats of learning. If the municipal law be also included in the restriction, (as sir Edward Cokex understands it, and which the words seem to import) then the intention is evidently this; by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university, which was newly instituted in the suburbs.

In this juridical university (for such it is insisted to have been by Fortescuey and sir Edward Cokez) there are two sorts of collegiate houses; one called inns of chancery, in which the younger students of the law were usually placed, "learning and studying, says Fortescue,a the originals and as it were the ele-

John II, abbot of St. Alban's, which he wrote in 1255, 39 Hen. III. speaks of advocates at the common law, or countors, (quos banci narratores vulgariter appellamus) as of an order of men well known. And we have an example of the antiquity of the coif in the same author's history of England, A D 1259, in the case of one William de Bussy, who, being called to account for his great knavery and mal-practices, claimed the benefit of his orders or clergy, which till then remained an entire secret; and to that end voluit ligamenta coifae suae solvere, ut palam monstraret se tonsuram, habere clericalem; sed nan est permissus. ........ Satelles vero eum arripiens, non per coifea ligamina sed per gutter mm appre

hendens, traxit ad carcerem. And hence sir H. Spelman conjectures, (Glossar. 335.) that coifs were introduced to hide the tonsure of such renegade clerks, as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition by canon.

u Ne aliquis scholas regens de legibus in cadem civitate de caetero ibidem, leges doceat.

w in Flet. 8. 2. x 2 Inst. proem.

y c. 49. z. 3 Rep pref.

a 3 Rep pref.

ments of the law; who profiting therein, as they grew to ripeness so were they admitted into the greater inns of the same study, called the inns of court." And in these inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did use to place their children, though they did not desire to have them thoroughly learned in the law, or to get their living by it's practice: and that in his time there were about two thousand students at these several inns, all of whom he informs us were filii nobilium, or gentlemen born.

Hence it is evident, that (though under the influence of the monks our universities neglected this study, yet) in the time of Henry the sixth it was thought highly necessary and was the universal practice, for the young nobility and gentry to be instructed in the originals and elements of the laws. But by degrees this custom has fallen into disuse; so that in the reign of queen Elizabeth sir Edward Cokeb does not reckon above a thousand students, and the number at present is very considerably less. Which seems principally owing to these reasons;

first, because the inns of chancery, being now almost totally filled by the inferior branch of the profession, are neither commodious nor proper for the resort of gentlemen of any rank or figure; so that there are very rarely any young students entered at the inns of chancery; secondly, because in the inns of court all sorts of regimen and academical superintendance, either with regard to morals or studies, are found impracticable and therefore entirely neglected; lastly, because persons of birth and fortune, after having finished their usual courses at the universities, have seldom leisure or resolution sufficient to enter upon a new scheme of study at a new place of instruction. Wherefore few gentlemen now resort to the inns of court, but such for whom the knowledge of practice is absolutely necessary;

such I mean as are intended for the profession: the rest of our gentry, (not to say our nobility also) having usually retired to their estates, or visited foreign kingdoms, or entered upon public life, without any instruction in the laws of the land, and indeed with hardly any opportunity of gaining instruction, unless it can be afforded them in these seats of learning.

b Ibid.

And that these are the proper places for affording assistances of this kind to gentlemen of all stations and degrees, cannot (I think) with any colour of reason be denied. For not one of the objections, which are made to the inns of court and chancery, and which I have just now enumerated, will hold with regard to the universities. Gentlemen may here associate with gentlemen of their own rank and degree. Nor are their conduct and studies left entirely to their own discretion; but regulated by a discipline so wise and exact, yet so liberal, so sensible and manly, that their conformity to it's rules (which does at present so much honour to our youth) is not more the effect of constraint, than of their own inclinations and choice. Neither need

they apprehend too long an avocation hereby from their private concerns and amusements, or (what is a more noble object) the service of their friends and their country. This study will go hand in hand with their other pursuits: it will obstruct none of them; it will ornament and assist them all.

But if, upon the whole, there are any, still wedded to monas

tic prejudice, that can entertain a doubt how far this study is properly and regularly academical, such persons I am afraid either have not considered the constitution and design of an university, or else think very meanly of it. It must be a deplorable narrowness of mind, that would confine these seats of instruction to the limited views of one or two learned professions. To the praise of this age be it spoken, a more open and generous way of thinking begins now universally to prevail. The attainment of liberal and genteel accomplishments, though not of the intellectual sort, has been thought by our wisest and most affectionate patrons,c and very lately by the whole university,d no small improvement of our antient plan of education: and therefore I may safely affirm that nothing (how unusual soever) is,

c Lord chancellor Clarendon, in his dialogue of education, among his tracts, p. 325. appears to have been very solicitous, that it might be made "a part of the ornament of our learned academies to teach the qualities of riding, dancing and fencing, at those hours when more serious exercises should be intermitted."

d By accepting in full convocation the remainder of lord Clarendon's history from his noble descendants, on condition to apply the profits arising from its publication to the establishment of a manage in the university.

under due regulations improper to be taught in this place, which is proper for a gentleman to learn. But that a science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish, or redress the other;

which employs in it's theory the noblest faculties of the soul, and exerts in it's practice the cardinal virtues of the heart; a science, which is universal in it's use and extent, accommodated to each individual, yet, comprehending the whole community; that a science like this should ever have been deemed unnecessary to be studied in an university, is matter of astonishment and concern. Surely, if it were not before an object of academical knowledge, it was high time to make it one; and to those who can doubt the propriety of its reception among us (if any such there be) we may return an answer in their own way;

that ethics are confessedly a branch of academical learning, and Aristotle himself has said, speaking of the laws of his own country, that jurisprudence or the knowledge of those laws is the principal and most perfect branch of ethics.e

From a thorough conviction of this truth, our munificent benefactor Mr. Viner, having employed above half a century in amassing materials for new-modelling and rendering more commodious the rude study of the laws of the land, consigned both the plan and execution of these his public-spirited designs to the wisdom of his parent university. Resolving to dedicate his learned labours "to the benefit of posterity and the perpetual service of his country,"f he was sensible he could not perform his resolution in a better and more effectual manner, than by extending to the youth of this place those assistances, of which he so well remembered and so heartily regretted the want. And the sense, which the university has entertained of this ample and most useful benefaction, must appear beyond a doubt, from their gratitude in receiving it with all possible marks of esteems; from their alacrity and unexampled dispatch in carrying

e Teleia maliVa arete, oti teV teleiaV areteV chresiV esi.

Ethic. ad Nicomach. I. 5. c. 3.

f See the preface to the eighteenth volume of his abridgment. g Mr. Viner is enrolled among the public benefactors of the university by decree of convocation.

it into execution;h and, above all, from the laws and constitutions by which they have effectually guarded it from the neglect and abuse to which such institutions are liable.i We have seen

h Mr. Viner died June 5, 1756. His effects were collected and settled, near a volume of his work printed, almost the whole disposed of, and the accounts made up in a year and a half from his decease, by the very diligent and worthy administrators with the will annexed, (Dr. West and Dr. Good of Magdalane, Dr. Whalley of Oriel, Mr Buckler of All Souls, and Mr. Betts of University college) to whom that care was consigned by the university. Another half year was employed in considering and settling a plan of the proposed institution, and in framing the statutes thereupon, which were finally confirmed by convocation on the 3d of July 1758. The professor was elected on the 20th of October following, and two scholars on the succeeding day. And, lastly, it was agreed at the annual audit in 1761, to establish a fellowship, and a fellow was accordingly elected in January following.... The residue of this fund, arising from the sale of Mr Viner's abridgment, will probably be sufficient hereafter to found another fellowship and scholarship, or three more scholarships, as shall be thought most expedient.

i The statutes are in substance as follows:

1. THAT the accounts of this benefaction be separately kept, and annually audited by the delegates of accounts and professor, and afterwards reported to convocation.

2. THAT a professorship of the laws of England be established, with a salary of two hundred pounds per annum; the professor to be elected by convocation, and to be at the time of his election at least a master of arts or bachelor of civil law in the university of Oxford, of ten years standing from his matriculation; and also a barrister at law of four years standing at the bar.

3. THAT such professor (by himself, or by deputy to be previously approved by convocation) do read one solemn public lecture on the laws of England, and in the English language, in every academical term, at certain stated times previous to the commencement of the common law term, or forfeit twenty pounds for every omission to Mr. Viner's general fund: and also (by himself, or by deputy to be approved, if occasional, by the vice-chancellor and proctors; or if permanent, both the cause and the deputy to be annually approved by convocation) do yearly read one complete course of lectures on the laws of England, and in the English language, consisting of sixty lectures at the least; to be read during the university term time, with such proper intervals that not more than four lectures may fall within any single week: that the professor do give a month's notice of the time when the course is to begin, and do read gratis to the scholars of Mr. Viner's foundation: but may demand of other auditor's such gratuity as shall be settled from time to time by decree of convocation; and that, for ever) of the said sixty lectures omitted, the professor on complaint made to the vice-chancellor within the year, do forfeit tony shillings to Mr. Viner's general fund, the proof of having performed his duty to lie upon the said professor.

an universal emulation, who best should understand, or most faithfully pursue, the designs of our generous patron: and with pleasure we recollect, that those who are most distinguished by

4. THAT every professor do continue in his office during life, unless in case of such misbehaviour as shall amount to bannition by the university statutes; or unless he deserts the profession of the law by betaking himself to another profession; or unless, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant omission: in any of which eases he be deprived by the vice-chancellor, with consent of the house of convocation.

5. THAT such a number of fellowships with a stipend of fifty pounds per annum, and scholarships with a stipend of thirty pounds, be established, as the convocation shall from time to time ordain, according to the state of Mr. Viner's revenues.

6. THAT every fellow be elected by convocation, and at the time of election be unmarried, and at least a master of arts or bachelor of civil law, and a member of some college or hall in the university of Oxford: the scholars of this foundation or such as have been scholars (if qualified and approved of by convocation) to have the preference: that, if not a barrister when chosen, he be called to the bar within one year after his election; but do reside in the university two months in every year, or in case of non-residence do forfeit the stipend of that year to Mr. Viner's general fund.

7. THAT every scholar be elected by convocation, and at the time of election be unmarried, and a member of some college or hall in the university of Oxford, who shall have been matriculated twenty-four calendar months at the least:

that he do take the degree of bachelor of civil law with all convenient speed:

(either proceeding in arts or otherwise) and previous to his taking the same, between the second and eighth year from his matriculation, be found to attend two courses of the professor's lectures, to be certified under the professor's hand; and within one year after taking the same to be called to the bar: that he do annually reside six months till he is of four years standing, and four months from that time till he is master of arts or bachelor of civil law: after which he be bound to reside two months in every year; or, in case of non-residence, do forfeit the stipend of that year to Mr. Viner's general fund.

8. That the scholarships do become void in case of non-attendance on the professor, or not taking the degree of bachelor of civil law, being duly admonished so to do by the vice-chancellor and proctors: and that both fellowships and scholarships do expire at the end of ten years after each respective election;

and become void in case of gross misbehaviour, non-residence for two years together, marriage, not being called to the bar within the time before limited (being duly admonished so to be by the vice-chancellor, and proctors) or deserting the profession of the law by following any other profession: and that in any of these cases the vice-chancellor, with consent of convocation, do declare the place actually void.

9. That in case of any vacancy of the professorship, fellowships, or scholarships, the profits of the current year be ratably divided between the predecessor

their quality, their fortune, their station, their learning, or their experience, have appeared the most zealous to promote the success of Mr. Viner's establishment.

The advantages that might result to the science of the law itself, when a little more attended to in these seats of knowledge, perhaps, would be very considerable. The leisure and abilities of the learned in these retirements might either suggest expedients, or execute those dictated by wiser heads,k for improving it's method, retrenching it's superfluities, and reconciling the little contrarieties, which the practice of many centuries will necessarily create in any human system: a task, which those, who are deeply employed in business and the more active scenes of the profession, can hardly condescend to engage in. And as to the interest, or (which is the same) the reputation of the universities themselves, I may venture to pronounce, that if ever this study should arrive to any tolerable perfection either here or at Cambridge, the nobility and gentry of this kingdom would not shorten their residence upon this account, nor perhaps entertain a worse opinion of the benefits of academical education. Neither should it be considered as a matter of light importance, that while we thus extend the pomoeria of university learning, and adopt a new tribe of citizens within these philosophical walls, we interest a very numerous and very powerful profession in the preservation of our rights and revenues.

For I think it past dispute that those gentlemen, who resort to the inns of court with a view to pursue the profession, will find it expedient (whenever it is practicable) to lay the previous foundations of this, as well as every other science, in one of our learned universities. We may appeal to the experience of every sensible lawyer, whether any thing can be more hazardous or discouraging than the usual entrance on the study of

or his representatives, and the successor; and that a new election be had within one month afterwards, unless by that means the time of election shall fall within any vacation, in which case it be deferred to the first week in the next full term. And that before any convocation shall be held for such election, or for any other matter relating to Mr. Viner's benefaction, ten days public notice be given to each college and hall of the convocation, and the cause of convoking it. k See lord Bacon's proposals and offer of a digest.

the law. A raw and unexperienced youth, in the most dangerous season of life, is transplanted on a sudden into the midst of allurements to pleasure, without any restraint or check but what his own prudence can suggest; with no public direction in what course to pursue his inquiries; no private assistance to remove the distresses and difficulties which will always embarrass a beginner. In this situation he is expected to sequester himself from the world, and by a tedious lonely process to extract the theory of law from a mass of undigested learning; or else by an assiduous attendance on the courts to pick up theory and practice together, sufficient to qualify him for the ordinary run of business. How little therefore is it to be wondered at, that we hear of so frequent miscarriages; that so many gentlemen of bright imaginations grow weary of so unpromising a search,l and addict themselves wholly to amusements, or other less innocent pursuits; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives.

The evident want of some assistance in the rudiments of legal knowledge has given birth to a practice, which, if ever it had grown to be general, must have proved of extremely pernicious consequence. I mean the custom by some so very warmly recommended, of dropping all liberal education, as of no use to students in the law: and placing them, in it's stead, at the desk of some skilful attorney; in order to initiate them early in all the depths of practice, and render them more dexterous in the mechanical part of business. A few instances of particular persons, (men of excellent learning, and unblemished integrity,) who, in spite of this method of education, have shone in the foremost ranks of the bar, have afforded some kind of sanction to this illiberal path to the profession, and biassed many parents, of short-sighted judgment, in it's favour: not consider-

1 Sir Henry Spelman, in the preface to his glossary, has given us a very lively picture of nib own distress upon this occasion. "Emisit me mater Londinum, juris nostri capessendi gratia; cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum inconcinnam, mo

lem non ingentem solum sed perpetuis humeris sustinendam, excidit mihi fateor) animus, &c."

ing, that there are some geniuses, formed to overcome all disadvantages, and that from such particular instances no general rules can be formed; nor observing, that those very persons have frequently recommended by the most forcible of all examples, the disposal of their own offspring, a very different foundation of legal studies, a regular academical education. Perhaps too, in return, I could now direct their eyes to our principal seats of justice, and suggest a few hints in favour of university learning:m .... but in these all who hear me, I know, have already prevented me.

Making therefore due allowance for one or two shining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in subservience to attorneys and solicitors,n will find he has begun at the wrong end. If practice be the whole he is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: ita lex scripta esto is the utmost his knowledge will arrive at; he must never aspire to form, and seldom expect to

comprehend, any arguments drawn a priori, from the spirit of the laws and the natural foundations of justice.

Nor is this all; for (as few persons of birth, or fortune, or even of scholastic education, will submit to the drudgery of servitude and the manual labour of copying the trash of an office) should this infatuation prevail to any considerable degree, we must rarely expect to see a gentleman of distinction or learning at the bar. And what the consequence may be, to have their

interpretation and enforcement of the laws (which include the entire disposal of our properties, liberties, and lives) fall wholly into the hands of obscure or illiterate men, is matter of very public concern.

m The four highest judicial offices were at that time filled by gentlemen, two of whom had been fellows of All Souls college; another, student of Christ church; and the fourth a fellow of Trinity college, Cambridge.

n See Kennet's Life of Somner, p. 67.

o Ff. 40. 9.12.

The inconveniences here pointed out can never be effectually prevented, but by making academical education a previous step to the profession of the common law, and at the same time making the rudiments of the law a part of academical education. For sciences are of a sociable disposition, and flourish best in the neighbourhood of each other: nor is there any branch of learning, but may be helped and improved by assistances drawn from other arts. If therefore the student in our laws hath formed both his sentiments and style, by perusal and imitation of the purest classical writers, among whom the historians and orators will best deserve his regard; if he can reason with precision, and separate argument from fallacy, by the clear simple rules of pure unsophisticated logic; if he can fix his attention, and steadily pursue truth through any the most intricate deduction, by the use of mathematical demonstrations; if he has enlarged his conceptions of nature and art, by a view of the several branches of genuine, experimental philosophy; if he has impressed on his mind the sound maxims of the law of nature, the best and most authentic foundation of human laws; if, lastly he has contemplated those maxims reduced to a practical system in the laws of imperial Rome; if he has done this or any part of it, (though all may be easily done under as able instructors as ever graced any seats of learning) a student thus qualified may enter upon the study of the law with incredible advantage and reputation. And if, at the conclusion, or during the acquisition of these accomplishments, he will afford himself here a year or two's farther leisure, to lay the foundation of his future labours in a solid scientifical method, without thirsting too early to attend that practice which it is impossible he should rightly comprehend, he will afterwards proceed with the greatest ease, and will unfold the most intricate points with an intuitive rapidity and clearness.

I shall not insist upon such motives as might be drawn from principles of oeconomy, and are applicable to particulars only: I reason upon more general topics. And therefore to the qualities of the head, which I have just enumerated, I cannot but add those of the heart; affectionate loyalty to the king, a zeal for liberty and the constitution, a sense of real honour, and well-

grounded principles of religion; as necessary to form a truly valuable English lawyer, a Hyde, a Hale, or a Talbot. And, whatever the ignorance of some, unkindness of others, may have heretofore untruly suggested, experience will warrant us to affirm, that these endowments of loyalty and public spirit, of honour and religion, are no where to be found in more high perfection than in the two universities of this kingdom.

Before I conclude, it may perhaps be expected, that I lay before you a short and general account of the method I propose to follow, in endeavouring to execute the trust you have been pleased to repose in my hands. And in these solemn lectures, which are ordained to be read at the entrance of every term, (more perhaps to do public honour to this laudable institution, than for the private instruction of individuals?) I presume it will best answer the intent of our benefactor and the expectation of this learned body, if I attempt to illustrate at times such detached tides of the law, as are the most easy to be understood, and most capable of historical or critical ornament. But in reading the complete course, which is annually consigned to my care, a more regular method will be necessary; and, till a better is proposed, I shall take the liberty to follow the same that I have already submitted to the public.q To fill up and finish that outline with propriety and correctness, and to render the whole intelligible to the uninformed minds of beginners, (whom we are too apt to suppose acquainted with terms and ideas, which they never had opportunity to learn,) this must be my ardent endeavour, though by no means my promise, to accomplish. You will permit me however very briefly to describe, rather what I conceive an academical expounder of the laws should do, than what I have ever known to be done.

He should consider his course as a general map of the law, marking out the shape of the country, it's connexions and boun-

p See Lowth's Oratio Crewiana, p. 365.

q The analysis of the laws of England, first published, A. D. 1759, and exhibiting the order and principal division of the ensuing COMMENTARIES;

which were originally submitted to the university in a private course of lectures, A. D. 1753.

daries, it's greater divisions and principal cities: it is not his business to describe minutely the subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet. His attention should be engaged, like that of the readers in Fortes-cue's inns of chancery, "in tracing out the originals, and as it were the elements of the law." For if, as Justinianr has observed, the tender understanding of the student be loaded at the first with a multitude and variety of matter, it will either occasion him to desert his studies, or will carry him heavily through them, with much labour, delay, and despondence. These originals should be traced to their fountains, as well as our distance will permit, to the customs of the Britons and Germans, as recorded by Caesar and Tacitus; to the codes of the northern nations on the continent, and more especially to those of our own Saxon princes; to the rules of the Roman law either left here in the days of Papinian, or imported by Vacarius and his followers; but, above all, to that inexhaustible reservoir of legal antiquities and learning, the feodal law, or, as Spelmans has entitled it, the law of nations in our western orb. These primary rules and fundamental principles should be weighed and compared with the precepts of the law of nature, and the practice of other countries; should be explained by reasons, illustrated by examples, and confirmed by undoubted authorities; their history should be deduced, their changes and revolutions observed, and it should be shewn how far they are connected with, or have at any time been affected by, the civil transactions of the kingdom.

A plan of this nature, if executed with care and ability, cannot fail of administering a most useful and rational entertainment to students of all ranks and professions; and yet it must be con-

r Incipientibus nobis exponere jura populi Romani, ita videntur tradi posse commodissime, si primo levi ac simplici via singula tradantur: alioqui, si statim ab initio rudem adhuc et infirmum animum, studiosi multitudine ac varietate rerum oneravimus, duorum alterum, aut desertorem studiorum efficiemus, aut cum magno labore, saepe etiam cum diffidentia (quae plerumque juvenes avertit) serius ad id perducemus, ad quod, leviore via ductus, sine magno labore, et sine ulla diffidentia maturius perduci potuisset. Inst. 1. 1. 2. s Of parliaments. 57.

fessed that the study of the laws is not merely a matter of amusement; for, as a very judicious writert has observed upon a similar occasion, the learner "will be considerably disappointed if he looks for entertainment without the expence of attention." An attention, however, not greater than is usually bestowed in mastering the rudiments of other sciences, or sometimes in pursuing a favourite recreation or exercise. And this attention not equally necessary to be exerted by every student upon every occasion. Some branches of the law, as the formal process of civil suits, and the subtile distinctions incident to landed property, which are the most difficult to be thoroughly understood, are the least worth the pains of understanding, except to such gentlemen as intend to pursue the profession. To others I may venture to apply, with a slight alteration, the words of sir John Fortescue,u when first his royal pupil determines to engage in this study. "It will not be necessary for a gentleman, as such, to examine with a close application the critical niceties of the law. It will fully be sufficient, and he may well enough be denominated a lawyer, if under the instruction of a master he traces up the principles and grounds of the law, even to their original elements. Therefore in a very short period, and with very little labour, he may be sufficiently informed in the laws of his country, if he will but apply his mind in good earnest to receive and apprehend them. For, though such knowledge as is necessary for a judge is hardly to be acquired by the lucubrations of twenty years, yet, with a genius of tolerable perspicacity, that knowledge which is fit for a person of birth or condition may be learned in a single year, without neglecting his other improvements."

To the few therefore (the very few I am persuaded) that entertain such unworthy notions of an university, as to suppose it intended for mere dissipation of thought; to such as mean only to while away the awkward interval from childhood to twenty-one, between the restraints of the school and the licentiousness of politer life, in a calm middle state of mental and of moral inactivity; to these Mr. Viner gives no invitation to an enter-

t Dr. Taylor's pref. to Elem. of civil law. u De laud. Leg. c. 8.

tainment which they never can relish. But to the long and illustrious train of noble and ingenuous youth, who are not more distinguished among us by their birth and possessions, than by the regularity of their conduct and their thirst after useful knowledge, to these our benefactor has consecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if such reflexions can be now the employment of his thoughts) that he could not more effectually have benefited posterity, or contributed to the service of the public, than by founding an institution which may instruct the rising generation in the wisdom of our civil polity, and inspire them with a desire to be still better acquainted with the laws and constitution of their country.

SECTION THE SECOND. OF THE NATURE OF LAWS IN GENERAL.

LAW, in it's most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.

Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for it's direction; as that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the

end of it's formation.

If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws;

more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; .... the method of animal nutrition, digestion, secretion, and all other branches of vital economy; .... arc not left to chance, or the will of the creature itself, but arc performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator.

This then is the general signification of law, a rule of action dictated by some superior being: and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it's existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour.

Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependence consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker's will.

This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.

Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also a being of infinite wisdom, he has laid down only

such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justiniana has reduced the whole doctrine of law.

But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance it's inseparable companion. As therefore the creator is a being, not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own true and substantial happiness." This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that

a Juris praecepta sunt hace, honeste vivere. alterum non laedere, suum cuique tribuere. Inst, 1. 1. 3.

this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other-It is binding over all the globe in all countries, and at all times;

no human laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life: by considering, what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

This has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in it's present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the

moral precepts of this law are indeed of the same original with those of the law of nature, so their Intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law. Because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae to abstain from it's perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature, and the law of God. Neither could any

other law possibly exist; for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject,b is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law, to regulate this mutual intercourse, called "the law of nations:" which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject: and therefore the civil lawc very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.

Thus much I thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by Justinian,d "jus civile est quod quisque sibi populus constituit." I call it municipal law, in compliance with common speech for, though strictly that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs.

Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the Supreme power in a

b Puffendorf, l 7. c. 1. compared with Barbeyrac's Commentary. c Ff. I. 1 9. d Inst 121.

state commanding what is right, and prohibiting what is wrong." Let us endeavour to explain it's several properties, as they arise out of this definition.

And, first, it is a rule; not a transient sudden order from a superior, to or concerning a particular person; but something permanent, uniform and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. It is also 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 upon 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 shall, or

shalt not, do it." It is true 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. Upon these accounts law is defined to be "a rule."

Municipal law is also "a rule of civil conduct." This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to

himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union: and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society.

It is likewise "a rule prescribed." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified, viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament.1 Yet, whatever way is made use of, it is incumbent

1 The laws of Virginia are promulgated by printing; copies of them are sent to the clerks of the county courts for the use of each magistrate, clerk, state's attorney, and sheriff in the County, or Corporation. Copies are likewise furnished the Judges of the Superior Courts. The Laws of the United States have been usually reprinted by the Printer to the Commonwealth, at the public expence, and distributed in the same manner. See V. L. 1794. c. 62. 3. 8. Certain laws are likewise directed to be translated and printed in the German language. Resolution of both Houses, December 23, 1794. Sessions Acts.

By the Act of 3. Cong. c. 115. the Secretary of State is required to furnish the Executives of the several States, and of the Territories Northwest, and South of the River Ohio, with four thousand five hundred copies of the Edition of the Laws of the United States, by that Act directed to be printed, and the like number of the Acts passed at each succeeding Session, to be divided among them according to the rule for apportioning Representatives, and distributed as the Executive or Legislature of the States shall deem most conducive

on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto;2 when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.e All laws should be therefore made to commence in futuro, and be notified before their commencement, which is implied in the term "prescribed." But when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.

But farther: municipal law is "a rule of civil conduct prescribed by the supreme power in a state." For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite

e Such laws among the Romans were denominated privilegia, or private laws of which Cicero (de leg. 3. 19. and in his oration pro domo, 17.) thus speaks: "Vetant leges sacratae, vetant duodecim tabulae, leges privatis hominibus irrogari, id enim est priviligium. Nemo unquam tulit, nihil est crudelius, nihil perniciosus, nihil quod minus haec civitas ferre possit."

to the general information of the people. And by the act of 5. Cong. c. 136. five thousand copies are directed to be printed and distributed in like manner. The act further directs that every order, resolution, or law passed by Congress, shall be published by the Secretary of State in at least one, and not more than three, of the Newspapers in each State.

2. No ex post facto law shall be passed by Congress; or by any of the United States. C. U. S. Art. 1. §. 9. 10.

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.3

This will naturally lead us into a short inquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society, either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest roan present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society, among themselves; which, every day extending it's limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But, though society had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together, that demonstrates the necessity of this union, and that therefore is the solid and natural

3. See Appendix to this Volume, Note A.

foundation, as well as the cement, of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole;

or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any.

For when civil society is once formed, government at the same time results of course, as necessary to preserve and to keep that society in order. Unless some superior 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 which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs, which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically stiled the supreme being; the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community: goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well-constituted frame of government.

How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and

has occasioned infinite disputes.4 It is not my business or intention to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

The political writers of antiquity will not allow more than three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly consisting of all the free members of a community, which is called a democracy;

the second, when it is lodged in a council, composed of select members, and then it is stiled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.

By the sovereign power, as was before observed, 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; by constituting one, or a few, or many executive magistrates: and all the other powers of the state must obey the legislative power in the discharge of their several functions, or else the constitution is at an end.5

4. Whatever difficulty or uncertainty there may be in tracing the origin of the several forms of government in the Old World, it is the distinguished happiness of America that no such difficulty or uncertainty can here prevail as will be shewn hereafter.

5. In a former note, (Appendix, note A,) we endeavoured to shew that this maxim does not apply to the governments of the American Stales; by whose respective Constitutions, as also by the Constitution

In a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found, than in the other frames of government;

of the Federal Government, the legislative power is restrained within certain limits, both in the Federal and State Governments, which neither the Congress, nor the State Legislatures can transgress, without an absolute breach of the Constitutions from whence the Legislative Authority is derived. For, both the Federal, and State Constitutions derive their authority and existence from the immediate act, and consent of the people, "in whom" as our bill of rights expresses it, "all power is vested, and consequently,

is derived from them." These acts of the people having, then, the stamp of primitive authority, must be paramount to the act of the Legislative body, which derives its authority, and even its existence from that origin.* And since the powers of the Legislature are thus limited, it follows that the Jura summi imperii, or that supreme, irresistible, absolute, uncontrolled authority, of which the commentator makes mention in a preceding paragraph, doth not reside in the legislature, nor in any other of the branches of the Government, nor in the whole of them united. For if it did reside in them, or either of them, then would there be no limits, such as may be found in all the American Constitutions, to the powers of Government. The existence of such limits proves the existence of an higher power elsewhere; that is, in the PEOPLE; in whom, and in whom, only, the rights of sovereignty remain: the people, therefore, only, and not the Legislature, have it at any time in their option to alter the form and administration of Government, by a new edict or rule, and to put the execution of their authority into whatever hands they please:

and all the powers of the State, the Legislature as well as the rest, must obey them in the execution of their several functions, or the Constitution will, indeed, be at an end. For the Constitution is a law to the Government, "which derives its just powers therefrom, as from the consent of the governed, for whose benefit that power is entrusted, and by whom, whenever it is abused, or exceeded, it may be revoked, and a new government instituted." See the American Declaration of Independence, July 1776.

* And herewith Vattel, B. 1. c. 3. §. 34. agrees.

being composed, or intended to be composed, of the most experienced citizens: but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most powerful of any; for by the entire conjunction of the legislative and executive powers all the sinews of government are knit together, and united in the hand of the prince: but then there is eminent danger of his employing that strength to improvident or oppressive purposes.

Thus these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained;

and monarchies to carry those means into execution. And the antients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicerof declares himself of opinion, "esse optime constitutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, sit modice confusa;" yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secureg6.

But, happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. For, as with us, the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy: and as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their va-

f In his fragments de rep. l. 2.

g "Cunctas nationes et urbes populus aut primores, aut singuli regunt: delecta ex bis et constituta reipublicae forma laudari facilius quam evenire, vel, si evenit, baud diuturna esse potest. Ann l. 4."

6. See Appendix. Note B.

lour, or their property;7 and thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs, and attentive to different interests, composes the British parliament, and has the supreme disposal of every thing;

there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous.

Here then is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches for instance, in the king and house of lords, our laws might be providently made, and well executed, but they might not have always the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only

7. This is an imposing picture: but let us see how this assembly is described, by an Ethical writer of the same country, and age. Officers of the army and Navy, courtiers, ecclesiastics, young men who have just attained the age of twenty one, and who have passed their youth in the dissipation and pursuits which commonly accompany the possession, or inheritance of great fortunes; country gentlemen occupied in the management of their estates, or in the care of their domestic concerns, and family interests; the greater part of the Assembly born to their station, that is, placed in it by chance; most of the rest advanced to the peerage, for services," &c. Paley's Philosophy B. 6. c. 8. May we not conclude with him. That there appears to be nothing in the education, habits, character, or professions of the members who compose that Assembly; in the mode of their appointment, or in the right by which they succeed to their places in it, to qualify them for their station?

and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution.8 The legislature

8. How then must it be if the two most numerous branches should become subservient to the views of the third. See Mackintosh's Defence of the French Revolution, 3d. London Edition ... pa. 264, 265, and pa. 337, to 341, cited in Appendix to this Volume. Note B. "The Constitution of Great Britain, says an American writer, is established only on precedents, or compulsory concessions, between parties at variance. These can be no longer binding than whilst the parties respectively possess the means of enforcing their observance. Of course it is, and always has been a government of contention, in which the opposite parties have been for a length of time by chance so nearly balanced, as not to have destroyed each other. How long this will last it is difficult to say;

but it may be affirmed that there is nothing of stability in their Constitution, and that almost every new case of importance introduces some new innovation in it. This is evident from their history and will appear particularly so from a perusal of Judge Blackstone's ingenious explanation of the right of succession to the crown; where it may be seen how every fresh incident has given occasion to a different modification of this right. The several powers of government are limited, though in an uncertain way, with respect to each other; but the three together are without any check in the Constitution, although neither can be properly called the Representatives of the people. It is for this reason that this transcendant power, or omnipotence is ascribed to their parliaments .... What stretch of authority they have usurped and exercised with impunity, is considered as their established privilege; for they hold it as a maxim, that whatever they have once done, however improperly, they have a right to do again. What farther powers they may safely assume experiment only can teach." Conciliatory Hints to the Citizens of South Carolina: by Philodemus .... 1784.

would be changed from that, which (upon the supposition of an original contract, either actual or implied) is presumed to have been originally set up by the general consent and fundamental act of the society: and such a change, however effected is according to Mr. Lockeh (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.

Having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, I proceed to observe, that as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws;9 that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states.

h On government, part ii. §. 212.

9. Since, according to the fundamental principles of both the Federal and State Constitution, and Government, the supreme power (or Jura summi imperii) resides in the people, it follows that it is the right of the people to make laws. But as the exercise of that Right by the people at large would be equally inconvenient and impracticable, the constitution of the State has vested that power in the General Assembly of the Commonwealth; and the Constitution of the United States has reposed the exercise of the1 same power as it relates to the Federal Government, in the Congress of the United States; a body composed either immediately, or mediately, of Representatives of the People; the House of Representatives being the immediate delegates of the people in their individual capacity;

the Senate representing them in their politic capacity, as forming different States; the latter although not chosen by the people, themselves, yet being chosen by the State Legislatures, which have no rights, nor authority, nor even an existence, but from the People, must be considered in the same light as the Representatives who are immediately chosen by them. It is from these express provisions both in the State, and Federal Constitutions, and not from metaphysical deduction, that the State, and Federal Legislatures derive the power of making Laws. See Constitution of Virginia, Art. 8. C. U. S. Art. 1.

For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted; and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law.

Thus far as to the right of the supreme power to make laws;

but farther, it is it's duty likewise. For since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that it's will. But, as it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, it is therefore incumbent on the state to establish general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest or Indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity.

From what has been advanced, the truth of the former branch of our definition is (I trust) sufficiently evident; that "municipal law is a rule of civil conduct prescribed by the supreme power in

a state."10 I proceed now to the latter branch of it; that it is a rule so prescribed, "commanding what is right, and prohibiting what is wrong."

Now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course

10. After what has been said in two former notes, it may be expected that we should refuse our assent, in America, to the applicability of this part of the commentator's definition of municipal law to the nature of our own governments. I therefore incline to prefer the definition of Justinian; "Just civile est quod quisque sibi populus constituit," to that of Mr. Blackstone, thus far. This I apprehend may be considered as comprehending the whole body of national institutions, from whatever source or authority derived;

whether the immediate act of the people, or that of the ordinary legislature, or founded on long and immemorial usage; whereas Mr. Blackstone's definition presuposses an act of the legislature in every case whatsoever; otherwise according to his own principles, no rule of law can be said to be "prescribed by the supreme power in the state." And however ingenious, and specious the argument may appear, that all the unwritten rules of law are founded upon some positive Statute, the memory of which has been lost, I can not help suspecting that there is more of ingenuity than truth in the idea; for the remote vestiges of legislative authority in England are too faint at this day, for us to repose much confidence in such theoretical conjectures.

According to Cicero, every rule of law must have a just sanction for its support. This may be, either the immediate act of the people declaring and establishing the fundamental laws and constitution of the state; or the act of the ordinary legislature; or immemorial Custom, and Usage; or former precedents, founded upon the nature of the Government, and the application of its principles, and the maxims of sound reason, to each particular case; or lastly, the application of those maxims and principles, to any new case; where no former precedent, custom, usage or positive precept can be found:

but in this application we must be careful not to introduce any new law, but, as far as possible to adapt the established rules of law to every such new case; and where that can not otherwise be done, we must adhere to the maxim, "potior est conditio defendentis."

We shall now proceed with the Commentator to the remaining parts of his definition, in which we shall probably meet with no difficulty in subscribing to his opinion.

that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights and to restrain or redress these wrongs. It remains therefore only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other.

For this purpose every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down:

another, directory: whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, remedial: whereby a method is pointed out to recover a man's private rights, or redress his private wrongs; to which may be added a fourth, usually termed the sanction, or vindicatory branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty.

With regard to the first of these, the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemesnors, that are forbidden by the superior laws, and therefore stiled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases

acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

But with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemesnors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purposes of civil society. And sometimes, where the thing itself has it's rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion:

but who those superiors shall be, and in what circumstances or to what degrees they shall be obeyed, it is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seising another's cattle shall amount to a trespass or a theft;

and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.

Thus much for the declaratory part of the municipal law:

and the directory stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. The law that says, "thou shall not steal," implies a declaration that stealing is a crime. And we have seeni that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them.

i See page 43.

The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongly withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, "that the field or inheritance, which belonged to Titius's father, is vested by his death in Titius;" and the directory part has "forbidden any one to enter on another's property, without the leave of the owner:" if Gaius after this will presume to take possession of the land, the remedial part of the law will then interpose it's office; will make Gaius restore the possession to Titius, and also pay him damages for the invasion.

With regard to the sanction of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather vindicatory than remuneratory, or to consist rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good.k For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the laws in execution. k Locke, Hum. Und. b. 2. c. 21.

Of all the parts of a law the most effectual is the vindicatory. For it is but lost labour to say, "do this, or avoid that," unless we also declare, "this shall be the consequence of your non-compliance." We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

Legislators and their laws are said to compel and oblige; not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.

It is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon men's consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must be understood with some restriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are mala in se: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance,l here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for other-

l See Vol III. 420.

wise the multitude of penal laws in a state would not only be looked upon as impolitic, but would also be a very wicked, thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; "either abstain from this "or submit to to such a penalty:" and his conscience will be clear, whichever side of the alternative he thinks proper to embrace......

Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August......

And so too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto, for not burying the dead in woollen, for not performing statute-work on the public roads, and for innumerable other positive misdemesnors. Now these prohibitory laws do not make the transgression a moral offence, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must however be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offence.* But where disobedience to the law in-

* This is a doctrine to which the Editor cannot subscribe. It is an important question, and deserves a more extensive discussion than can conveniently be introduced into a note. The solution of it may not only affect the quiet of the minds of conscientious men, but may be the foundation of arguments and decisions in every branch of the law. To form a true judgment upon this subject, it is necessary to take into consideration the nature of moral and positive laws. The principle of both is the same, viz. utility, or the general happiness and true interests of mankind,

Atque ipsa utilitas justi prope mater et aequi. But the necessity of one set of laws is seen prior to experience; of the other, posterior. A moral rule is such, that every man's reason (if not perverted) dictates it to him as soon as he associates with other men. It is universal, and must be the same in every part of the world. Do not kill, do not steal, do not violate promises, must be equally obligatory in England, Lapland, Kamchatka, and New Holland. But a positive law is discovered by experience to be useful and necessary only to men in certain districts, or under peculiar circumstances. It is said that it is a capital crime in Holland to kill a stork, because that animal destroys the vermin which would undermine the dykes or banks, upon which the existence of the country depends. This may be a wise law in

volves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offence against conscience.m

m Lex pure poenalis obligat tantum ad poenam, non item ad culpam: lex poenalis mixta et ad culpam obligat, et ad poenam, (Sanderson de conscient. obligat. prael. viii. §. 17. 24.)

Holland; but the life of a stork in England would probably be of no more value than that of a sparrow, and such a law would be useless and cruel in this country.

By the laws of nature and reason, every man is permitted to build his house in any manner he pleases; but from the experience of the destructive effects of fire in London, the legislature with great wisdom enacted that all party-walls should be of a certain thickness; and it is somewhat surprising that they did not extend this provident act to all other great towns. (14 Geo. 3. c. 78.)

It was also discovered by experience, that dreadful consequences ensued, when sea-faring people, who returned from distant countries infected with the plague, were permitted immediately to come on shore, and mix with the healthy inhabitants i it was therefore a wise and merciful law, though restrictive of natural right and liberty, which compelled such persons to be purified from all contagion by performing quarantine. (4 Vol. 161.)

He who, by the breach of these positive laws, introduces conflagration and pestilence, is surely guilty of a much greater crime than he is who deprives another of his purse or his horse.

The laws against smuggling are entirely juris positivi; but the criminality of actions can only be measured by their consequences; and he who saves a sum of money by evading the payment of a tax, does exactly the same injury to society as he who steals so much from the treasury; and is therefore guilty of as great immorality, or as great an act of dishonesty. Or smuggling has been compared to that species of fraud which a man would practise who should join with his friends in ordering a dinner at a tavern, and after the festivity and gratifications of the day, should steal away, and leave his companions to pay his share of the reckoning.

Punishment or penalties are never intended as an equivalent or a composition for the commission of the offence; but they are that degree of pain or inconvenience, which are supposed to be sufficient to deter men from introducing that greater degree of inconvenience, which would result to the community from the general permission of that act, which the law prohibits. It is no recompence to a man's country for the consequences of an illegal act, that he should afterwards be whipped, or should stand in the pillory, or lie in a gaol. But in positive laws, as in moral rules, it is equally false that omnia peccata paria sunt. It there are laws, such perhaps as the game-laws, which in the public opinion produce little benefit or no salutary effect to society, a conscientious man will feel perhaps no further regard for the observance of them, than from the consideration that his example may encourage others to violate those laws which are more highly beneficial to the community. Indeed, the last sentence of the

I have now gone through the definition laid down of a municipal law; and have shewn that it is "a rule .... of civil conduct .... prescribed .... by the supreme power in a state .... commanding what is right and prohibiting what is wrong:" in the explication of which I have endeavoured to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. Before I conclude this section, it may not be amiss to add a few observations concerning the interpretation of laws.

When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions, which had only the nature of things for their guide. The emperor Macrinus, as his historian Capitolinus informs us, had once resolved to abolish these rescripts, and retain only the general edicts: he could not bear that the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise", and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, n Inst. 1. 2. 6.

learned Judge upon this subject, is an answer to his own doctrine; for the disobedience of any law in existence, must be presumed to involve in it cither public mischief or private injury. It is related of Socrates, that he made a promise with himself to observe the laws of his country; but this is nothing more than what every good man ought both to promise and to perform: and he ought to promise still farther, that he will exert all his power to compel others to obey them. As the chief design of established government is the prevention of crimes and the enforcement of the moral duties of man, obedience to that government necessarily becomes one of the highest of moral obligations: and the principle of moral and positive laws being precisely the same, they become so blended, that the discrimination between them is frequently difficult or impracticable, or, as the author of the Doctor and Student has expressed it with beautiful simplicity "In every law positive well-made, is somewhat of the law of reason and of the law of God; and to discern the law of God and the law of reason from the law positive, is very hard." 1 Dial. c. 4. CHRISTIAN.

are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf,o which forbad a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited "to the princess Sophia, and the heirs of her body, being protestants," it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "heirs of her body;" which in a legal sense comprize only certain of her lineal descendants.

2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.*

o L. of N. and N. 5. 12. 3.

* It is an established rule of construction that statutes in pari materia, or upon the same subject, must be construed with a reference to each other; that is, that what is clear in one statute, shall be called in aid to explain what is obscure and ambiguous in another .... Thus the last qualification act to kill game

Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: and when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.11

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victuals; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf,p which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after a long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

p l. 5. c. 12. §. 8.

11. So we must resort to the Common-Law of England to explain that part of the Constitution of the United States, which declares, that the benefit of the Writ of Habeas Corpus, shall not be suspended except in case of rebellion, or invasion.

(22 and 23 Car. 2. c. 25.) enacts, "that every person not having lands and tenements, or some other estate of inheritance, of the clear yearly value of 100l. or for life, or having lease or leases of ninety-nine years of the clear yearly value of 150l." (except certain persons) shall not be allowed to kill game. Upon this statute a doubt arose, whether the words or for life should be referred to the 100l. or to the 150l. per annum. The court of king's bench having

5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius.q There was a law, that those who in a storm forsook the ship, should forfeit all property therein; and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to its preservation.12

From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius,r "the correction of that, wherein the law (by reason of it's

q l. 1. c. 11. r de aequitate, §. 3.

12. On this subject of the interpretation of Laws in General, see Doctor Rutherforth's Inst. of Nat. Law, B. 2. c. 7.

looked into the former qualification acts, and having found that it was clear by the first qualification act (13 R. 1. st. 1. c 13 ) that a layman should have 40s. a year, and a priest 10l a year, and that by the 1 Ja. c. 27. the qualifications were clearly an estate of inheritance of 10l. a year, and an estate for life of 30l. a year they presumed that it still was the intention of the legislature to make the yearly value of an estate for life greater than that of an estate of inheritance, though the same proportions were not preserved; and thereupon decided, that clergymen, and all others possessed of a life estate only, must have 150l. a year to be qualified to kill game. Lowndes v. Lewis, E. T. 22 Geo. 3.

The same rule to discover the intention of a testator is applied to wills, viz. he whole of a will shall be taken under consideration, in order to decypher the meaning of an obscure passage in it. CHRISTIAN.

universality) is deficient." For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, "lex non exacte definit, sed arbitrio boni viri permittit."

Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light, must not be indulged too far; lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

SECTION THE THIRD.

OF THE LAWS OF ENGLAND*.

THE municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law.

The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.1

* Before we proceed with the Commentator to consider the subject of the ensuing Section, it will be proper to bestow some attention on those Acts of the PEOPLE OF THIS COMMONWEALTH, in particular, and of the UNITED STATED, in general, to which nothing similar occurs in the Constitution and Government of England, or of Great Britain; being Laws, not only to the individual, and to the other departments of the Government, but to the Legislature, also. These are, the CONSTITUTION of the State of VIRGINIA, for which we must refer the Student to the Appendix to this part, Note C; and the CONSTITUTION of the UNITED STATES, which will be treated of in the Appendix, Note D.

1 From what circumstance the general customs, or common law of England, properly so called, obtains authority in these states will be the subject of future enquiry: but, with respect to particular customs, these, with the single exception of the Custom of Merchants, being merely local, could not be translated by our Ancestors to their new settlements in this Western World; and consequently have no authority, or existence here: as to the third branch of the lex non scripta, or particular Laws observed by custom in particular courts, a very small portion of them, indeed, will be found in the civil establishments of Virginia, even before the revolution.

When I call these parts of our law leges non scriptae, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that, in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirely traditional; for this plain reason, because the nations among which they prevailed, had but little idea of writing. Thus the British as well as the Gallic druids committed all their laws as well as learning to memory;a and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant.b But, with us at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However I therefore stile these parts of our law leges non scriptae, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non scriptum to be that, which is "tacito et illiterato hominum consensu et moribus expressum."

Our antient lawyers, and particularly Fortescue,c insist with abundance of warmth, that these customs are as old as the primitive Britons; and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some:

but in general, as Mr. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another: though doubtless by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established; thereby

a Caes. de b. G. lib. 6. c. 13. b Spelm. Gl. 362. c c. 17.

in all probability improving the texture and wisdom of the whole, by the accumulated wisdom of divers particular countries. Our laws, saith lord Bacon,d are mixed as our language: and, as our language is so much the richer, the laws are the more complete.

And indeed our antiquaries and early historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us, that in the time of Alfred, the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his dome-book, or liber judicialis, for the general use of the whole kingdom. This book is said to have been extant so late as the reign of king Edward the fourth, but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemesnors, and the forms of judicial proceedings. Thus much may at least be collected from that injunction to observe it, which we find in the laws of king Edward the elder, the son of Alfred.e "Omnibus qui reipublicae praesunt etiam atque etiam mando, ut omnibus aequos se praebeant judices, perinde ac in judiciali libro (Saxonice, Som-bec) scriptum habeter: nec quicquam formident quin jus commune (Saxonice, polepihee) audacter libereque dicant"

But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse; or at least to be mixed and debased with other laws of a coarser alloy. So that about the beginning of the eleventh century there were three principal systems of laws, prevailing in different districts. 1. The Mercen-Lage, or Mercian laws which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the antient Britons; and therefore very probably intermixed with the British or Druidical customs. 2. The West-Saxon-Lage, or laws of the west Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred above-mentioned, being the municipal

d See his proposals of a digest. e c. 1.

law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish law, the very name of which speaks it's original and composition. This was principally. maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct government.f

Out of these three laws, Roger Hovedeng and Ranulphus Cestrensish inform us, king Edward the confessor extracted one uniform law or digest of laws, to be observed throughout the whole kingdom; though Hoveden and the author of an old manuscript chroniclei assure us likewise, that this work was projected and begun by his grandfather king Edgar. And indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, which were formed from an assemblage of little provinces, governed by peculiar customs. As in Portugal, under king Edward, about the beginning of the fifteenth century:k in Spain, under Alonzo X, who about the year 1250 executed the plan of his father St. Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled las partidas:l and in Sweden, about the same aera; when a universal body of common law was compiled out of the particular customs established by the laghmen of every province, and entitled the land's lagh, being analogous to the common law of England.m

Both these undertakings, of king Edgar and Edward the confessor, seem to have been no more than a new edition, or fresh promulgation, of Alfred's code or dome-book with such additions and improvements as the experience of a century and an half had suggested. For Alfred is generally stiled by the same historians the legum Anglicanarum conditor, as Edward

f Hal Hist. 55

g in Hen. 11

h in Edw. Confessor

i in Seld. ad Eadmer. 6

k Mod Un Hist. xxii 135

1 Ibid xx. 211.

m Ibid xxxiii, 21. 58.

the confessor is the restitutor. These however are the laws which our histories so often mention under the name of the laws of Edward the confessor; which our ancestors struggled so hardly to maintain, under the first princes of the Norman line; and which subsequent princes so frequently promised to keep and restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. These are the laws, that so vigorously withstood the repeated attacks of the civil law; which established in the twelfth century a new Roman empire over most of the states of the continent: states that have lost, and perhaps upon that account, their political liberties; while the free constitution of England, perhaps upon the same account, has been rather improved than debased. These, in short, are the laws which gave rise and original to that collection of maxims and customs, which is now known by the name of the common law. A name either given to it, in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as a law common to all the realm, the jus commune or folk-right mentioned by king Edward the elder, after the abolition of the several provincial customs and particular laws before-mentioned.

But though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach:

nothing being more difficult than to ascertain the precise beginning and first spring of an antient and long established custom. Whence it is, that in our law, the goodness of a custom depends upon it's having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary.2 This it is that gives it it's weight and authority: and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.

This unwritten, or common, law is properly distinguishable into three kinds: 1. General customs; which are the universal

2. That is from the reign of Richard the first .... See Black. Com. Vol. 2. p. 31.

rule of the whole kingdom, and form the common law, in its stricter and more usual signification. 2. Particular customs;

which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction.

I. As to general customs, or the common law, properly so called; this is that law, by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts;

the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record; the chancery, the king's bench, the common pleas, and the exchequer .... that the eldest son alone is heir to his ancestor .... that property may be acquired and transferred by writing .... that a deed is of no validity unless sealed and delivered .... that wills shall be construed more favourably, and deeds more strictly .... that money lent upon bond is recoverable by action of debt .... that breaking the public peace is an offence, and punishable by fine and imprisonment .... all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support.

Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and 2. Established rules and maxims; as, "that the king can do no wrong, that no

man shall be bound to accuse himself," and the like. But I take these to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage:

and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it.

But here a very natural, and very material, question arises:

how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study; from the "viginti annorum lucubrationes," which Fortescuen mentions; and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. The judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. And therefore, even so early as the conquest, we find the "praeteritorum memoria eventorum" reckoned up as one of the chief qualifications of those, who were held to be "legibus patriae optime instituti."o For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments:

he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception,

n cap. 8. o Seld. review of Tith c. 8.

where the former determination is most evidently contrary to reason; much more if it be dearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law, that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded.p And it hath been an antient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.

The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former times, as not to suppose that they acted wholly without consideration. To illustrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. For herein there is no-

p Herein agreeing with the civil law, Ff. 1. 3. 20, 21. "Non omnium, quae a majoribus nostris constituta sunt, ratio reddi potest. Et ideo rationes eorum, quae constituuntur, inquiri non oportet: alioquin multa ex bis, quae certa sunt, subvertuntur."

thing repugnant to natural justice;* though the artificial reason of it, drawn from the feodal law, may not be quite obvious to every body. And therefore, though a modern judge, on account of a supposed hardship upon the half brother, might wish it had been otherwise settled, yet it is not in his power to alter it. But if any court were now to determine, that an elder brother of the half blood might enter upon and seise any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was not law. So that the law, and the opinion of the judge, are not always convertible terms, or one and the same thing; since it sometimes may happen, that the judge may mistake the law. Upon the whole, however, we may take it as a general rule, "that the decisions of courts of justice are the evidence of what is common law:" in the same manner as, in the civil law, what the emperor had once determined, was to serve for a guide for the future.q

The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. These reports are histories of the several cases, with a short summary of the proceedings which are preserved at large in the record, the arguments on both sides, and the reasons the court gave for it's judgment; taken down in short notes by persons present at the determination. And these serve as indexes

q "Si imperialis majestas causam cognitionaliter examinaverit, et partibus, cominus constitutis sententiam dixerit, omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse legem, non solum illi causae pro qua producta est, sed et in omnibus similibus." C. 1. 14. 12.

* But it is certainly repugnant to natural reason, where a father leaves two sons by two different mothers, and dies intestate, and a large estate descends to his eldest son, who dies a minor or intestate, that this estate should go to the lord of the manor or to the king, rather than to the younger son. When such a case happens in the family of a nobleman, or a man of great landed property, this law will then probably appear so absurd and unreasonable, that it will not be suffered to remain long afterwards a reproach to our system of jurisprudence. See vol. iii. p. 231. CHRISTIAN.

to, and also to explain, the records; which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of king Edward the second inclusive; and from his time to that of Henry the eighth were taken by the prothonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day: for, though king James the first at the instance of lord Bacon appointed two reportersr with a handsome stipend for this purpose, yet that wise institution was soon neglected; and, from the reign of Henry the eighth to the present time, this task has been executed by many private and contemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination.3 Some of the most valuable of the antient reports are those published by lord chief justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However his writings are so highly esteemed, that they are generally cited without the author's name.s

r Pat. 15 Jac. I p. 18, 17 Rym. 26. s His reports, for instance, are stiled kat exocen the reports, and in quoting them we usually say, 1 or 2 Kep. not 1 or 2 Coke's Rep. as in citing other authors. The reports of judge Croke are also cited in a peculiar manner, by the name of those princes, in whose reigns the cases reported in his three volumes were determined; viz. queen Elizabeth, king James, and king Charles the first; as well as by the number of each volume. For sometimes we call them 1, 2, and 3 Cro. but more commonly Cro. Eliz. Cro. Jac. and Cro. Car.

3. The only Reports that have hitherto been published in Virginia, are those of Mr. Wythe, the present Chancellor of the State, of such Cases, as have been decided in the High Court of Chancery, since he hath been the sole Judge of it; and those of Mr. Washington, and Mr. Call, of cases determined in the Court of Appeals. A continuance of such publications is most devoutly to be wished especially by those Judges, whose Judgments are subject to the revision and correction of the Court of Appeals. The

Besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde, with some others of antient date; whose treatises are cited as authority, and are evidence that cases have formerly happened, in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from old authors, is the same learned judge we have just mentioned, sir Edward Coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge Littleton in the reign of Edward the fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the antient reports and year books, but greatly defective in method.s The second volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts.t

And thus much for the first ground and chief corner stone of the laws of England, which is general immemorial custom,

s It is usually cited either by the name of Co. Litt. or as I Inst. t These are cited as 2, 3, or 4 Inst. without any author's name. An honorary distinction, which, we observed, is paid to the works of no other writer;

the generality of reports and other tracts being quoted in the name of the compiler, as 2 Ventris, 4 Leonard, 1 Siderfin, and the like.

The Reports of Mr. Dallas, of Cases determined in the supreme Court of the United States, and in the Federal Courts held in Pennsylvania, are also extremely valuable, both in respect to the matter of which they treat, and the manner in which they are executed. See Dallas's reports vol. 2. and 3. The first volume comprehends only cases decided in the State Court of Pennsylvania.

or common law, from time to time declared in the decisions of the courts of justice: which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law.

The Roman law, as practiced in the times of it's liberty, paid also a great regard to custom; but not so much as our law:

it only then adopting it, when the written law was deficient ....

Though the reasons alledged in the digestu will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. "For since, says Julianus, the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind every body. For where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?" Thus did they reason while Rome had some remains of her freedom: but, when the imperial tyranny came to be fully established, the civil laws speak a very different language. "Quod principi placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatum conferat," says Ulpian.w "Imperator solus et conditor et interpres legis existimatur," says the code:x and again, sacrilegii instar est rescripto principis obviari."y And indeed it is one of the characteristic marks of English liberty, 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.4

II. The second branch of the unwritten laws of England are particular customs, or laws which affect only the inhabitants of particular districts. (4)

u Ff. 1. 3. 32, x. C 1. 14 12.

w Ff. 1. 4.1. y C. I. 23. 5.

4. See Appendix, Note E. (4.) See the note, p. 63.

These particular customs, or some of them, are without doubt the remains of that multitude of local customs before-mentioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confessor: each district mutually sacrificing some of it's own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But, for reasons that have been now long forgotten, particular counties,5 cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament.z

Such is the custom of gavelkind in Kent and some other parts of the kingdom (though perhaps it was also general till the Norman conquest) which ordains, among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike: and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord .... Such is the custom that prevails in divers antient boroughs, and therefore called borough-english, that the youngest son shall inherit the estate, in preference to all his elder brothers .... Such is the custom in other boroughs that a widow shall be entitled, for her dower, to all her husband's lands;

whereas at the common law she shall be endowed of one third part only. Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the said manors .... Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns;

the right of holding which, when no royal grant can be shewn,

z Mag. Chart. 9 Hen. III. c. 9 .... 1 Edw. III. st. 2. c. 9 .... 14 Edw. III. st. 1. c. 1 .... and 2 Hen. IV. c. 1.

5. In Virginia, the Counties, and even parishes, were formerly authorized to make bye laws. This would in time have proved an abundant source of local usages and customs. But the act authorising them, 1662 c. 15. was repealed about seventeen years after it passed. 1679. c. 3. They may be found in Parvis's collection, 112. 237.

depends entirely upon immemorial and established usage ....

Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the general law of the land, and are good only by special usage; though the customs of London are also confirmed by act of parliament.a

To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it;b being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions: for it is a maxim of law, that "cuilibet in sua arte credendum est."6

The rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.

As to gavelkind, and borough-english, the law takes particular notice of them,c and there is no occasion to prove that

a 8 Rep 126. Cro. Car. 347. b Winch. 24.

c Co. Litt. 175.

6. The lex mercatoria, or general law and custom among Merchants, stands I presume upon the same authority in Virginia; what that law is, is to be ascertained and determined by judicial decisions and not by any local usages amongst Merchants and Traders; for these form no part of the common law of England, as the general law of Merchants doth. See Lord Mansfield's report, in the case of Edie and another against the East India Company; and Justice Foster's opinion in the same case .... 2 Burrow, 1222. and 1226.

But where the law is not settled, it would seem that evidence of local usages, which are so settled and established among merchants and traders, as to be clear and plain beyond a doubt is proper for the consideration of a Jury. Lord Mansfield .... Ibid, 1221. 1222.

See the case of Branch v. Burnley, 1st. Calls Reports, 147. and the arguments and opinions of the Judges of the Court of Appeals therein.

such customs actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded,d and as well the existence of such customs must be shewn, as that the thing in dispute is within the custom alleged. The trial in both cases (both to shew the existence of the custom, as, "that in the manor of Dale lands shall descend only to the heirs male, and never to the heirs female;" and also to shew "that the lands in question are within that manor") is by a jury of twelve men, and not by the judges; except the same particular custom has been before tried, determined, and recorded in the same court.e

The customs of London differ from all others in point of trial: for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and alderman by the mouth of their recorder,f unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c. for then the law permits them not to certify on their own behalf.g

When a custom is actually proved to exist, the next enquiry is into the legality of it; for, if it is not a good custom, it ought to be no longer used. "Malus usus abolendus est" is an established maxim of the law.h To make a particular custom good, the following are necessary requisites.

1. That it have been used so long, that the memory of man runneth not to the contrary.7 So that, if any one can shew the

d Litt. §. 265. e Dr. & St. 1. 10. f Cro. Car. 516. g Hob. 85. h Litt §. 212. 4 Inst. 274.

7. It may be therefore doubted whether any custom can be established in the United States of America. For, Time of memory hath been ascertained by the Law to commence from the reign of Richard I. and any custom, in England, may be destroyed by evidence of its non-existence, at any subsequent period. Now, the settlement of North America by the English did not take place 'till the reign of Queen Elizabeth, near four hundred years afterwards ....

See 2. Vol. Black. Com. p. 31.

beginning of it, it is no good custom. For which reason no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist.j

2. It must have been continued. Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only, for ten or twenty years, will not destroy the custom.i As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed, though they do not use it for ten years; it only becomes more difficult to prove: but if the right be any how discontinued for a day, the custom is quite at an end.

3. It must have been peaceable, and acquiesced in; not subject to contention and dispute.k For as customs owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting.

4. Customs must be reasonable;l or rather, taken negatively, they must not be unreasonable. Which is not always, as sir Edward Coke says,m to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law. Upon which account a custom may be good, though, the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his; and then the tenants will lose all their profits.n j Co Litt 113. 1 Litt § 212 i Ibid 114 m 1 Inst 62 k Ibid n Co Copyh § 33

5. Customs ought to be certain. A custom, that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good.o A custom to pay two pence an acre in lieu of tithes, is good; but to pay sometimes two pence and sometimes three pence, as the occupier of the land pleases, is bad for it's uncertainty. Yet a custom to pay a year's improved value for a fine on a copyhold estate, is good; though the value is a thing uncertain: for the value may at any time be ascertained; and the maxim of law is, id certum est, quod certum reddi potest.

6. Customs, though established by consent, must be (when established) compulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants shall be rated toward the maintenance of abridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all.

7. Lastly, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom.p (a).

Next, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly. Thus, by the custom of gavelkind, an infant of fifteen years may by one species of conveyance (called a deed of feoffment) con-o 1 Roll Abr 565 p 9 Rep 58

(a) [See the case of Wiglesworth against Dallison and another, reported in Douglas, 190.]

vey away his lands in fee simple, or for ever. Yet this custom does not empower him to use any other conveyance, or even to lease them for seven years: for the custom must be strictly pursued.q And, moreover, all special customs must submit to the king's prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone.r And thus much for the second part of the leges non scriptae, or those particular customs which affect particular persons or districts only.

III. The third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws.

It may seem a little improper at first view to rank these laws under the head of leges non scriptae, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals;

and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. But I do this, after the example of sir Matthew Hale,s because it is most plain, that it is not on account of their being written laws, that either the canon law, or the civil law, have any obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority, which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors; were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here: for the legislature of England doth not, nor ever did, recognize any foreign power, as superior or equal to it in this kingdom; or as having the right to give law to any, the meanest, of it's subjects. But all the strength that either the papal or imperial laws have obtained in this realm (or indeed in any other

q Co. Cop. §. 33. s Hist. C. L. c. 2.

r Co. Litt. 15.

kingdom in Europe) is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the leges non scriptae, or customary laws: or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the leges scriptae, or statute law.8 This is expressly declared in those remarkable words of the statute 25 Henry VIII. c. 21, addressed to the king's royal majesty .... "This your grace's realm, recognizing no superior under God but only your grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained within this realm for the wealth of the same; or to such other as, by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, by their own consent, to be used among them: and have bound themselves by long use and custom to the observance of the same: not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the customed and antient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise."

By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprized in the institutes, the code, and the digest of the emperor Justinian, and the novel constitutions of himself and some of his successors. Of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account.

The Roman law (founded first upon the regal constitutions of their antient kings, next upon the twelve tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the responsa prudentum or opinions

8. The authority of the common law of England, and of certain particular Statutes made in aid of the common law, may now be considered as resting upon a nearly similar foundation in Virginia;

and perhaps in most of the United States .... See Edo. 1794. c. 147.

of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors) had grown to so great a bulk, or, as Livy expresses it,t "tam immensus aliarum super alias acervatarum legum cumulus," that they were computed to be many camels' load by an author who preceded Justinian.u This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger, by whose orders a code was compiled, A. D. 438, being a methodical collection of all the imperial constitutions then in force: which Theodosian code was the only book of civil law received as authentic in the western part of Europe, till many centuries after; and to this it is probable that the Franks and Goths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms. For Justinian commanded only in the eastern remains of the empire;

and it was under his auspices, that the present body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533.

This consists of, 1. The institutes; which contain the elements or first principles of the Roman law, in four books. 2. The digests, or pandects, in fifty books; containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions, in twelve books; the lapse of a whole century having rendered the former code, of Theodosius, imperfect. 4. The novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Justinian; which however fell soon into neglect and oblivion, till about the year 1130, when a copy of the digests was found at Amalfi in Italy: which accident, concurring with the policy of the Roman ecclesiastics,w suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded.

t l. 3. c. 34. u Taylor's elements of civil law 17. w See §. 1. p. 18.

The canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over.9 This is compiled from the opinions of the antient Latin fathers, the decrees of general councils, and the decretal epistles and bulles of the holy see. All which lay in the same disorder and confusion as the Roman civil law: till, about the year 1151, one Gratian an Italian monk, animated by the discovery of Justinian's pandects, reduced the

ecclesiastical constitutions also into some method, in three

books; which he entitled concordia discordantium canonum, but which are generally known by the name of decretum Gratiani. These reached as low as the time of pope Alexander III. The

subsequent papal decrees, to the pontificate of Gregory IX, were published in much the same method under the auspices of that pope, about the year 1230, in five books; entitled decretalia Gregorii noni. A sixth book was added by Boniface VIII, about the year 1298, which is called sextus decretalium. The Clemen

tine constitutions, or decrees of Clement V, were in like manner authenticated in 1317 by his successor John XXII; who also published twenty constitutions of his own, called the extravagantes Joannis: all which in some measure answer to the novels of the civil law. To these have been since added some decrees of later popes in five books, called extravagantes communes. And all

these together, Gratian's decree, Gregory's decretals, the sixth decretal, the Clementine constitutions, and the extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law.

Besides these pontifical collections, which during the times of popery were received as authentic in this island, as well as in other parts of Christendom, there is also a kind of national canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church and kingdom. The legatine constitutions were ecclesiastical laws, enacted in national synods, held under the cardinals Otho and Othobon, legates from pope Gregory IX, and pope Clement IV, in the reign of

9. The authority of the Canon-law, in Virginia (except perhaps in some matrimonial causes) since the passing the act for establishing religious Freedom. 1785. c. 34. [Edo. 1794. c. 20.] maybe considered as either utterly abolished, or, at least highly questionable.

king Henry III, about the years 1220 and 1268. The provincial constitutions are principally the decrees of provincial synods, held under divers archbishops of Canterbury, from Stephen Langton in the reign of Henry III, to Henry Chichele in the reign of Henry V; and adopted also by the province of York,x in the reign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII, it was enacted in parliamenty that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in England (9).

As for the canons enacted by the clergy under James I, in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity;z whatever regard the clergy may think proper to pay them.

There are four species of courts, in which the civil and canon laws are permitted (under different restrictions) to be used. 1. The courts of the archbishops and bishops, and their derivative officers, usually called in our law courts christian, curiae christianitatis, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty.10 4. The courts of the two universities. In all, their reception in general, and the dif-

x Burn's eccl. law, pref viii. z Stra. 1057. y Statute 25 Hen VIII, c. 19, revived and confirmed by 1 Eliz. c. 1.

(9) This Statute of 25. H. 8. c. 19. (as also that of 1. Eliza. c. 1.) is repealed, by the general repeal of all British Statutes, Edo. of 1794. c. 147.

10 Courts of admiralty are authorized by the C. U. S. art: 3. The District Courts of the U. S. are invested with their powers, in general: for which see L. U. S. 1. Cong: 1. Sess: c. 20. s. 9.11 .... 3. Cong: c. 50. The other Courts here mentioned are obsolete; at least in Virginia.

ferent degrees of that reception, are grounded entirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them.a

1. And, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess,11 and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.

2. The common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts, or the matters depending before them(11). And therefore, if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to restrain and control them.

3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own. And, from these three strong marks and ensigns of superiority, it appears beyond a doubt, that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate, and leges sub graviori lege; and that, thus admitted, restrained, altered,

a Hale Hist. c. 2.

11. The supreme Court of the United States hath power to issue writs of prohibition to the District Courts, when proceeding as Courts of Admiralty and Maritime Jurisdiction. L. U. S. 1. Cong:

1. Sess: c. 20 s. 13.

(11) Vide L. U. S. 1. Cong: 1. Sess: c. 20. s. 25. in what cases the Federal Government may grant a writ of error to a State Court.

new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the king's ecclesiastical, the king's military, the king's maritime, or the king's academical, laws.

Let us next proceed to the leges scriptae, the written laws of the kingdom: which are statutes, acts, or edicts, made by the king's majesty, by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled.b The oldest of these now extant, and printed in our statute books, is the famous magna charta, as confirmed in parliament 9 Hen. III. though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law.

The manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. At present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction.c

b 8 Rep. 20.

c The method of citing these acts of parliament is various. Many of our antient statutes are called after the name of the place where the parliament was held that made them; as the statutes of Merton and Marieberge, of Westminster, Glocester, and Winchester. Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the articuli cleri, and the praerogativa regis. Some are distinguished by their initial words, a method of citing very antient: being used by the Jews in denominating the books of the pentateuch, by the Christian church in distinguishing their hymns and divine offices; by the Romanists in describing their papal bulles; and in short by the whole body of antient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also; in imitation of all which we still call some of our old statutes by their initial words, as the statute of quia emptores, and that of circumspecte agatis. But the most usual method of citing them, especially since the time of Edward the second, is by naming the year of the king's reign in which the statute was made, together with the chapter, or particular act, according to it's numeral order, as 9 Geo. II. c. 4. For all the acts of one session of parliament taken together make properly but one statute: and therefore when two sta-

First, as to their several kinds. Statutes are either general or special, public or private. A general or public act is an universal rule, that regards the whole community: and of this the courts of law are bound to take notice judicially and ex officio;

without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns: such as the Romans entitled senatus-decreta, in contradistinction to the senatus consulta, which regarded the whole community:d and of these (which are not promulgated with the same notoriety as the former) the judges are not to take notice, unless they be formally shewn and pleaded.12 Thus, to shew the distinction, the statute 13 Eliz. c. 10. to prevent spiritual persons from making leases for longer terms than twenty-one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of Chester to make a lease to A. B. for sixty years, is an exception to this rule; it concerns only the parties and the bishop's successors; and is therefore a private act.

Statutes are also either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2, doth not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. Remedial stations have been held in one year, we usually mention stat. 1. or 2. Thus the bill of rights is cited, as 1 W. and M. st. 2. c. 2 signifying that it is the second chapter or act, of the second statute, or the laws made in the second session of parliament, in the first year of king William and queen Mary.

d Gravin. Orig. 1. §. 24.

12. Private acts of Assembly may be given in evidence without pleading them specially. L. V. 1789. c. 28. [Edo. of 1794; 76. s. 30.]

tutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever. And this being done, either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, hath occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law: so that this was an enlarging statute. At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. before-mentioned: this was therefore a restraining statute.13

Secondly, the rules to be observed with regard to the construction of statutes are principally these which follow.

1. There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act, as to suppress the mischief and advance the

13. Although these Statutes are mentioned here by way of illustration only, it may not be improper to apprize the Student that neither the Statute of 5. Eliza: c. 11. to prevent the clipping of the current Coin; nor the Stat: of 13. Eliza: c. 10. to restrain spiritual persons from making certain Leases, are in force in Virg. the first being virtually repealed by the act declaring what shall be Treason Octo: 1776. c. 3. [Edo. of 1794, c. 136.] and the latter by the act repealing all British Statutes, under certain restrictions. [Edo. 1794, c. 147.]

And here it may not be improper to offer to the Student a view of the written laws of Virginia: for which see Appendix, note F.

remedy.e Let us instance again in the same restraining statute of 13 Eliz. c. 10, By the common law, ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty-one years. Now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop's continuance in his see; or, if made by a dean and chapter, they are not void during the continuance of the dean: for the act was made for the benefit and protection of the successor.f The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the grantors; but the leases, during their continuance, being not within the mischief, are not within the remedy.

2. A statute, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior. So a statute, treating of "deans, prebendaries, parsons, vicars, and others having spiritual promotion," is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named, and bishops being of a still higher orders.

3. Penal statutes must be construed strictly.14 Thus the statute 1 Edw. VI. c. 12. having enacted that those who are con-

e 3 Rep. 7. Co. Litt 11. 42. g 2 Rep 46.

f Co. Litt. 45. 3 Rep. 60. 10 Rep. 58.

14. A curious instance may be mentioned, where this rule was either not attended to, or the words of a penal statute were unknown in the highest Court of Judicature in Great Britain; viz. the House of Lords. The Statute of 1. Ja. 1. c. 11. upon which the Dutchess of Kingston was indicted, tried, found guilty, and received judgment in that court, (if we may credit the authority of the editors of the Statutes at large, and particularly Bill and Newcomb's, Lond. 1684, said to have been carefully examined with the Rolls of parliament) does not extend to the case of a woman marrying a second husband, during the life of a former. The words of the enacting clause are, "If

victed of stealing horses should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but one horse, and therefore procured a new act for that pur-

any person or persona being married, or which shall hereafter marry, do at any time marry any person or persons the former wife being alive &c." It is true that Sir Edward Coke, 3. Inst. p. 88. and after him, Sir Mathew Hale 1. H. P. C. 692. quote it in these words, "the former Husband or Wife being alive" .... But not only Bill and Newcomb's but one or two other Editions of the Statutes which I have seen, omit the words "Husband or," from whence I am inclined to believe that the Error crept into the parliament roll itself; for it was evidently the intention of the Statute to take in both cases .... I have supposed it probable that Sir Edward Coke, who was (perhaps about that time) Attorney General, might have prepared the draught of the Statute, and that he inserted the extract from it which is given in his Institutes from that draught, without consulting the Roll, or a printed copy of the Statute.

"It is a fundamental rule of construction, that all penal Statutes shall be construed strictly, and remedial Statutes [such as are mentioned in the next paragraph for prevention of frauds] "shall be construed liberally. It was one of the laws of the twelve tables at Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle the law of England has adopted in the construction of penal Statutes: for whenever any ambiguity arises in a Statute introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy; or, in favour of natural right, and liberty: or, in other words the decision shall be according to the strict letter in favour of the subject. And though the Judges in such cases may frequently raise, and solve difficulties, contrary to the intention of the legislature, yet no further inconvenience can result, than that the law remains as it was, before the Statute. And it is more consonant to the principles of liberty, that the judge should acquit whom the legislature intended to punish, than that he should punish whom the legislature intended to discharge with impunity. But remedial Statutes, [or such as are

made against Fraud] "must be construed according to the Spirit:

for in giving relief against fraud, or in the furtherance and extention of national right, and Justice, the Judge may safely go beyond even that which existed in the minds of those who framed the law." .... Christian.

"And therefore it hath been held, that the same words in a Statute will bear different interpretations, according to the nature of the suit or prosecution instituted upon them." As in the Statute

pose in the following year.h And, to come nearer our own times, by the statute 14 Geo. II. c. 6. stealing sheep, or other cattle, was made felony without benefit of clergy. But these general words, "or other cattle," being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next sessions, it was found necessary to make another statute, 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs by name.15

4. Statutes against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule, most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts Upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly: but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5.16 which avoids all gifts of goods, &c. made to defraud creditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture.i 17

h 2 & 3 Edw. VI. c. 33 Bac. Elem. c. 12. i 3 Rep. 83.

against gaming, which is held to be remedial where the action is brought by the party losing at play, to recover back his money lost;

but penal where it is brought by a common informer, who hath sustained no injury ....Christian .... See the Case of Bones vs. Booth. 2. Black. rep. 1226.

15. The Statutes of 14. Geo. 2. c. 6. and 15. Geo: 2. c. 34. cited in this paragraph were never considered as in force in Virginia.

16. See L. V. 1785. c. 64. [Edo. 1794. c. 10.] accordant. 17 There being some variation between the words of the Statute 13. Eliza: c. 5. and the corresponding clause of our Act, to prevent frauds and perjuries, Edo. 1794. c. 10. s. 2. it may be questioned whether that act would extend to the case of a Gift or Conveyance made to defraud the commonwealth of a forfeiture or penalty, neither of which words although found in the British Statute, arc inserted in that part of our Laws, which declares the Gift &c. void, only as against such persons, &c .... But according to sir Edward Coke's opinion it would seem that the British Statute was declaratory of what the common Law was before; ideo Quaere,

5. One part of a statute must be so construed by another, that the whole may (if possible) stand: ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, saving the right of A; and A has at that time a lease of it for three years: here A shall hold it for his term of three years, and afterwards it shall go to the king. For this interpretation furnishes matter for every clause of the statute to work and operate upon. But,

6. A saving, totally repugnant to the body of the act, is void. If therefore an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A in the king, saving the right of A: in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation;

and therefore the saving is void, and the land vests absolutely in the king.k

7. Where the common law and a statute, differ, the common law gives place to the statute, and an old statute gives place to a new one. And this upon a general principle of universal law, that "leges posteriores priores contrarias abro-k 1 Rep. 47.

18. But this maxim is to be understood as relating only to Laws made by a Legislature possessing equal, or superior powers, to that by which the first law was made. Thus Congress may alter, repeal or annul any of its own acts: and in some few cases they may even annul the acts of the state legislatures should they attempt to legislate upon any subjects which the constitution of the United States prohibits; if, for example, the legislature of a State should declare all contracts made before, or after a certain day to be void; Congress (should they deem it necessary) might I presume, pass a subsequent act repealing such unconstitutional act, though without any such repeal, the act being contrary to the constitution would be void of itself. But should Congress attempt to pass a law contrary to the constitution of the United States, or should the state legislature make a similar attempt against it, or against the State Constitution; such acts, though cloathed with all the forms of Law, would not be law, nor repeal in any measure what was established by a higher authority, to wit, that of the people. Yet the People whenever they sec fit may make any alterations in the Constitution which they may deem necessary to their happiness, and the prosperity of the nation.

gant":18 consonant to which it was laid down by a law of the twelve tables of Rome, that "quod populus postremum jussit, id jus ratum esto." But this is to be understood, only when the latter statute is couched in negative terms, or where it's matter is so clearly repugnant, that it necessarily implies a negative .... As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute afterwards enacts that he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and, virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end.l But if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter-sessions, and a latter law makes the same offence indictable at the assises; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either: unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assises, and not elsewhere.m

8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII, declaring the king to be the supreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express words of revival in queen Elizabeth's statute, but these acts of king Henry were impliedly and virtually revived.n 19

1 Jenk. Cent. 2. 73. m 11 Rep. 63. n 4 Inst. 325.

19. This rule of construction was altered in Virginia, by the act of 1789. c. 9. by which it is declared, "That whensoever one law, which shall have repealed another, shall be itself repealed, the former law shall not be revived without express words to that effect."

A second rule of construction prescribed by that act, is, "that every act passed during any stated annual session, shall commence in force on the first day of March, then next ensuing, unless in the

9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs, that no person for assisting a king de facto shall

act itself, another day be particularly mentioned for the commencement thereof."

A third rule of construction prescribed by the same act, is, "that as often as a question shall arise, whether a law passed during any session, changes or repeals a former law, passed during the same session, the same construction shall be made, as would have been made, if the act entitled an act concerning elections of members of General Assembly, had never been passed." This act commenced on the fifteenth day of January 1790. It was casually omitted in the Edition of 1794, being consolidated in a bill which did not pass. It is however still in force .... The act referred to in the latter rule above mentioned, (passed in October 1785) contains this clause .... "that all acts shall commence from their passage, unless in the act itself another day is appointed for its commencement."

In the case of Proudfit vs. Maury, this act received an exposition in the Court of Appeals, which I presume settles the much agitated question relative to those laws passed in the session of 1792, which were suspended by an act of the same session, ch. 150. The case is thus stated by Pendleton, president:

"An act passed November 12, 1792, relative to protested Bills of Exchange, repealing all former acts on the subject; and to commence from the passing.

"The 28th of December 1792, an act passed, declaring the operation of this and many other alike circumstanced, to be suspended until October 1st. 1793,

"During this suspension, to wit, in February 1793, the Bill on which the suit was brought was drawn; and would within the saving of the new act of 1792, be considered as commencing in October 1793.

"But it is relied on, that the act of November was in force from its passage, 'till December the 28th. and therefore, that under the act of 1789. c. 9. the law of 1748, was effectually repealed, dead, and gone, for a month and sixteen days; and could only be revived by an express declaration of the Legislature. Because, since the act of 1789, c. 9. the repeal of a repealing law does not revive the repealed law, without a direction to that effect.

"The rule in England is the reverse; a repealed law is revived, by the repeal of that which has stopped its force. A rule certainly inconvenient; since old acts, long since forgotten, might be revived upon the community; affecting their persons and proper

be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder.o Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if it's ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of succeeding legislatures. "When you repeal the law itself, says he, you at the same time repeal the prohibitory clause, which guards against such repeal."p

10. Lastly, acts of parliament that are impossible to be performed are of no validity: and if there arise out of them collaterally any absurd consequences, manifestly contradictory to

o 4 Inst. 43.

p Cum lex abrogatur, illad ipsum abrogatur, quo non eam abrogari oporteut. l ep. 23.

ty upon a legal fiction without notice that such was the case; which inconvenience was properly removed by the Act of 1789.

"But, as the inconvenience could not happen in the case of the repeal of an Act passed the same session (not gone forth among the citizens, but known only to the Legislature) I was struck with an impression, that to such Laws, the Legislature never meant their rule should extend; and doubted, whether this being a repealing Law, never repealed, but suspended, only, for a time, and yet in force, came within the letter or spirit of the act of 1789. However, we were relieved from all difficulty by recurring to the act itself, where the doubt is stated and solved. The president then proceeds to state the third rule of construction prescribed by the act of 1789, as above cited; as also that part of the act of October 1785. which is before mentioned, and then proceeds thus: This latter law being declared to have no operation on the question, what was the rule of construction before? Why, that all laws were considered as passed on the first day of the session. According to this rule then, the original act and that for it's suspension, commenced together." Call's rep. vol. 1. 401.

This very important decision may be considered as settling the law in an infinite number of cases of difficulty, arising under the various laws, enacted, suspended, and repealed, during the session of 1792.

common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions;

though I know it is generally laid down more largely, that acts of parliament contrary to reason are void.20 But if the parali-

20. One would imagine that it could not be deemed any great stretch of the freedom of opinion, to pronounce that any legislative act which prescribes a thing contrary to reason, is void; yet the caution of the learned commentator on this occasion is certainly conformable to the principles of the British government; in which, it seems to be agreed by all their Jurists, the authority of parliament is absolute and uncontrollable; insomuch that it may alter or change the Constitution itself. But, in America, the Constitutions, both of the individual States, and of the federal Government, being the acts of the people, and not of the Government, and the powers of Government being by those Constitutions, respectively, distributed into three distinct, and co-ordinate, branches; viz:

the legislature, the executive, and the judiciary; all which are equally bound by Duty to their Constituents, the people; and by Oath, also, to support the Constitution; it follows, as has been already shewn [Appendix, Note A.] that the legislature can possess, no power, or obligation over the other Branches of Government, in any case, where the principles of the Constitution, may be in any degree infringed by an acquiescence under the authority of the legislative department. The examples supposed, and the authority cited in that note, sufficiently evince the Justice of the position here contended for; and will warrant us in extending the rule here laid down by the learned commentator, by adding thereto, That all acts of the Congress of the United States, impairing, infringing or violating the principles of the federal Constitution; and all acts of the legislature of this Commonwealth, which violate, infringe or impair the same, or any law of the United States made pursuant to the powers granted to the Congress by the federal Constitution, or any Treaty made under the authority of the United States, or the Bill of Rights, and Constitution of this Commonwealth, are not binding upon any other branch of the federal or State-government: and any Citizen of the Commonwealth, who may be aggrieved by any such unconstitutional Act, hath an undoubted right to redress, by application to the judicial Courts of the State, or of the United States according to the nature of the case. "The constitution and its laws," as Vattel justly observes, "are the basis of the public tranquility, the firmest support of the public authority, and pledge of the liberty of the citizens. But this Constitution is a vain phantom, and the best Laws are useless, if they are not religiously observed. The nation ought then to watch very attentively, in order to ren-

ment will positively enact a thing to he done which is unreasonable, I know of no power in the ordinary forms of the constitution, that is vested with authority to control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that, where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel.q But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.

These are the several grounds of the laws of England: over and above which, equity is also frequently called in to assist, to moderate, and to explain them. What equity is, and how impossible in it's very essence to be reduced to stated rules, hath q 8. Rep. 118.

der them equally respected by those who govern, and by the people destined to obey. To attack the Constitution of the State, and to violate its laws is a capital crime against the society, and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are entrusted. The nation ought constantly to suppress these abuses, with its utmost vigor, and vigilance, as the importance of the case requires. It is very uncommon to see the Laws and Constitution of the State, openly and boldly opposed; it is against silent and slow attacks that a nation ought to be particularly on its guard.'' Vattel's Law of nations B: 1. 3. act: 30. See also, the Federalist; vol: 2, no: 78.

been shewn in the preceding section. I shall therefore only add, that (besides the liberality of sentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind) there are also peculiar courts of equity established for the benefit of the subject;

to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business of our courts of equity, which however arc only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.

SECTION THE FOURTH.

OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.

THE kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a view, before we consider the kingdom of England itself, the original and proper subject of these laws.

Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Caesar and Tacitus ascribe to Britain in general, for many centuries;

even from the time of the hostile invasions of the Saxons, when the ancient and Christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the antient Britons grew every day narrower; they were over-run by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length in the reign of Edward the first, who may justly be stiled the conqueror of Wales, the line of their antient princes was abolished, and the king of England's eldest son became, as a matter of course, their titular prince; the territory of Wales being then entirely re-annexed (by a kind of feodal resumption) to the

dominion of the crown of England;a or, as the statute of Rhudhlanb expresses it, "terra Walliae cum incolis suis, prius regi jure feodah subjecta, (of which homage was the sign) jam in proprietatis dominium totaliter et cum integritate conversa est, et coronae regni Angliae tanquam pars corporis ejusdem annexa et unita." By the statute also of Walesc very material alterations were made in divers parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity; particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency was given by the statute 27 Hen. VIII. c. 26. which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practised with great success; till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges.

It is enacted by this statute 27 Hen. VIII, 1. That the dominion of Wales shall be for ever united to the kingdom of England. 2. That all Welshmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall be used in Wales: besides many other regulations of the police of this principality. And the statute 34 and 35 Hen. VIII, c. 26. confirms the same, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of England in only a few particulars, and those too of the nature of pri-

a Vaugh. 400 b 10 Edw I.

c 12 Edw. I

vileges, (such as having courts within itself, independent of the process of Westminster-hall,) and some other immaterial peculiarities, hardly more than are to be found in many counties of England itself.

The kingdom of Scotland, notwithstanding the union of the crowns on the accession of their king James VI. to that of England, continued an entirely separate and distinct kingdom for above a century more, though an union had been long projected;

which was judged to be the more easy to be done, as both kingdoms were antiently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. By an act of parliament 1 Jac. I. c. 1. it is declared, that these two mighty, famous, and antient kingdoms were formerly one. And sir Edward Coke observes,d how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their antient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same;

especially as their most antient and authentic book, called regiam majestatem, and containing the rules of their antient common law, is extremely similar to that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.

However, sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union:

but these were at length overcome, and the great work was happily effected in 1707, 6 Anne; when twenty-five articles of union

d 4 Inst. 345

were agreed to by the parliaments of both nations; the purport of the most considerable being as follows:

1. That on the first of May, 1707, and for ever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Great Britain.

2. The succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.

3. The united kingdom shall be represented by one parliament.

4. There shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed.

9. When England raises 2,000,000l. by a land-tax, Scotland shall raise 48,000l.

16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the united kingdoms.

18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; though alterable by the parliament of Great Britain. Yet with this caution: that laws relating to public policy are alterable at the discretion of the parliament;

laws relating to private right are not to be altered but for the evident utility of the people of Scotland.

22. Sixteen peers are to be chosen to represent the peerage of Scotland in parliament, and forty-five members to sit in the house of commons.

23. The sixteen peers of Scotland shall have all privileges of parliament: and all peers of Scotland shall be peers of Great

Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the house of lords and voting on the trial of a peer.

These are the principal of the twenty-five articles of union, which are ratified and confirmed by statute 5 Ann. c. 8. in which statute there are also two acts of parliament recited; the one of Scotland, whereby the church of Scotland and also the four universities of that kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same: the other of England, 5 Ann. c. 6. whereby the acts of uniformity of. 13 Eliz. and 13 Car. II. (except as the same had been altered by parliament at that time) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick upon Tweed. And it is enacted, that these two acts "shall for

ever be observed as fundamental and essential conditions of

the union."

Upon these articles and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again; except the mutual consent of both, or the successful resistance of either, upon apprehending an infringment of those points which, when they were separate and independent nations, it was mutually stipulated should be "fundamental and essential conditions of the union.e 2. That

e It may justly be doubted, whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union: for the bare idea of a state, without a power somewhere vested to alter every part of it's laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a foederate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of a revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See Warburton's alliance, 195.) But the wanton or imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though by no means destroy) the union.

whatever else may be deemed "fundamental and essential conditions," the preservation of the two churches, of England and Scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitution of either of those churches, or in the liturgy of the church of England, (unless with the consent of the respective churches, collectively or representatively given,) would be an infringment of these "fundamental and essential conditions," and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by parliament; and, as the parliament has not yet thought proper, except in a few instances, to alter them, they still (with regard to the particulars unaltered) continue in full force. Wherefore the municipal or common laws of England are, generally speaking, of no force or validity in Scotland; and of consequence, in the ensuing commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illustration, the municipal laws of that part of the united kingdoms.

The town of Berwick upon Tweed was originally part of the kingdom of Scotland; and, as such, was for a time reduced by king Edward I. into the possession of the crown of England:

and, during such it's subjection, it received from that prince a charter, which (after its subsequent cession by Edward Balliol, to be for ever united to the crown and realm of England) was

To illustrate this matter a little farther: an act of parliament to repeal or alter the act of uniformity in England, or to establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and, notwithstanding such an act, the union would continue unbroken. Nay, each of these measures might be safely and honourably pursued, if respectively agreeable to the sentiments of the English church, or the kirk in Scotland. But it should seem neither prudent, nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the inherent powers of parliament, or at the instance of mere individuals .... So sacred indeed are the laws abovementioned (for protecting each church and the English liturgy) esteemed, that in the regency acts both of 1751 and 1765 the regents are expressly disabled from assenting to the repeal or alteration of either these, or the act of settlement.

confirmed by king Edward III, with some additions; particularly that it should be governed by the laws and usages which it enjoyed during the time of king Alexander, that is before it's reduction by Edward I. It's constitution was new-modelled, and put upon an English footing by a charter of king James I:

and all it's liberties, franchises, and customs, were confirmed in parliament by the statutes 22 Edw. IV. c. 8. and 2 Jac. I. c. 28. Though therefore it hath some local peculiarities, derived from the antient laws of Scotland,f yet it is clearly part of the realm of England, being represented by burgesses in the house of commons, and bound by all acts of the British parliament, whether specially named or otherwise. And therefore it was (perhaps superfluously) declared by statute 20 Geo. II. c. 42. that, where England only is mentioned in any act of parliament, the same notwithstanding hath and shall be deemed to comprehend the dominion of Wales and town of Berwick upon Tweed. And though certain of the king's writs or processes of the courts of Westminster do not usually run into Berwick, any more than the principality of Wales, yet it hath been solemnly adjudgedg that all prerogative writs (as those of mandamus, prohibition, habeas corpus, certiorari, &c.) may issue to Berwick as well as to every other of the dominions of the crown of England, and that indictments and other local matters arising in the town of Berwick may be tried by a jury of the county of Northumberland.

As to Ireland, that is still a distinct kingdom; though a dependent subordinate kingdom. It was only entitled the dominion or lordship of Irelandh and the king's stile was no other than dominus Hiberniae, lord of Ireland, till the thirty-third year of king Henry the eighth; when he assumed the title of king, which is recognized by act of parliament 35 Hen. VIII. c. 3. But, as Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for

f Hale Hist. C. L. 183.1 Sid. 382. 462. 2 Show. 365.

g Cro. Jac. 543. 2 Roll. abr. 292. Stat. 11 Geo. I. c. 4. 4 Burr. 834.

h Stat. Hiberniae. 14 Hen. III.

the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by king Henry the second: and the laws of England were then received and sworn to by the Irish nation, assembled at the council of Lismorei ....

And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by, such laws as the superior state thinks proper to prescribe.

At the time of this conquest the Irish were governed by what they call the Brehon law, so stiled from the Irish name of judges, who were denominated Brehons.k But king John in the twelfth year of his reign went into Ireland and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England:l which letters patent sir Edward Cokem apprehends to have been there confirmed in parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law: so that both Henry the thirdn and Edward the firsto were obliged to renew the injunction; and at length in a parliament holden at Kilkenny, 40 Edw. III. under Lionel the duke of Clarence, then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of queen Elizabeth, the wild natives still kept and preserved their Brehon law; which is describedq to have been "a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great shew of equity in determining the right between party and party, but in many things repugnant quite both to

i Pryn. on 4 inst. 249,

k 4 Inst. 358. Edm. Spenser's state of Ireland. p. 1513. edit. Hughes.

1 Vaugh. 294. 2. Pryn. Rec. 85. 7 Rep. 23, m 1 Inst. 141.

n A. R. 30. 1 Rym. Feod. 443.

o A. R. 5. — pro eo quod leges quibus utuntur Hybernici Deo detestabiles existunt, et omni juri dissonant, adeo, quod leges censeri non debeant; nobis et consilio nostro satis videtur expediens, cisdem utendas concedere leges Anglicanas. 3 Pryn. Rec. 1218.

p Edm. Spenser, ibid.

God's laws and man's." The latter part of this character is alone ascribed to it, by the laws before-cited of Edward the first and his grandson.

But as Ireland was a distinct dominion, and had parliaments of it's own, it is to be observed, that though the immemorial customs, or common law, of England were made the rule of justice in Ireland also, yet no acts of the English parliament, since the twelfth of king John, extended into that kingdom, unless it were specially named, or included under general words, such as,

within any of the king's dominions." And this is particularly expressed, and the reason given in the year books:q "a tax granted by the parliament of England shall not bind those of Ireland, because they are not summoned to our parliament;" and again, "Ireland hath a parliament of its own, and maketh and altereth laws; and our statutes do not bind them, because they do not send knights to our parliament: but their persons are the king's subjects, like as the inhabitants of Calais, Gascoigne, and Gulenne, while they continued under the king's subjection." The general run of laws, enacted by the superior state, are supposed to be calculated for it's own internal government, and do not extend to it's distant dependent countries;

which, bearing no part in the legislature, are not therefore in its ordinary and daily contemplation. But, when the sovereign legislative power sees it necessary to extend it's care to any of it's subordinate dominions, and mentions them expressly by name or includes them under general words, there can be no doubt but then they are bound by it's laws.r

The original method of passing statutes in Ireland was nearly the same as in England, the chief governor holding parlia

ments at his pleasure, which enacted such laws as they thought proper.s But an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the reign of Edward IV, a set of statutes were there enacted in the 10 Hen. VII. (sir Edward Poynings being then lord deputy, whence they are

q 20 Hen. VI. 8. 2 Ric. III. 12.

r Yearbook 1 Hen. VII. 3. 7 Rep. 22 Calvin's case.

s Irish Stat. 11 Eliz. st. 3. c S.

t Ibid. 10 Hen. VII. c. S3.

called Poyning's laws) one of which,u in order to restrain the power as well of the deputy as the Irish parliament, provides,

1. That, before any parliament be summoned or holden, the chief governor and council of Ireland shall certify to the king under the great seal of Ireland the considerations and causes thereof, and the articles of the acts proposed to be passed therein.

2. That after the king, in his council of England, shall have considered, approved, or altered the said acts or any of them, and certified them back under the great seal of England, and shall have given licence to summon and hold a parliament, then the same shall be summoned and held; and therein the said acts so certified, and no other, shall be proposed, received, or rejected.w But as this precluded any law from being proposed, but such as were pre-conceived before the parliament was in being, which occasioned many inconveniences and made frequent dissolutions necessary, it was provided by the statute of Philip and Mary before-cited, that any new propositions might be certified to England in the usual forms, even after the summons and during the session of parliament. By this means however there was nothing left to the parliament in Ireland, but a bare negative or power of rejecting, not of proposing or altering, any law. But the usage now is, that bills are often framed in either house, under the denomination of "heads for a bill or bills:" and in that shape they arc offered to the consideration of the lord lieutenant and privy council: who, upon such parliamentary intimation, or otherwise upon the application of private persons, receive and transmit such heads, or reject them without any transmission to England. And with regard to Poynings' law in particular, it cannot be repealed or suspended, unless the bill for that purpose, before it be certified to England, be approved by both the houses.x

But the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and the measure of justice in both kingdoms becoming thence no longer

u Cap. 4. expounded by 3 & 4 Ph and M. c. 4.

w 4 Inst. 353.

x Irish Stat. 11 Eliz. st. 3. c 38.

uniform, it was therefore enacted by another of Poynings' laws,y that all acts of parliament, before made in England, should be of force within the realm of Ireland.z But, by the same rule, that no laws made in England, between king John's time and Poynings' law, were then binding in Ireland, it follows that no acts of the English parliament made since the 10 Hen. VII. do now bind the people of Ireland, unless specially named or included under general words.a And on the other hand it is equally clear, that where Ireland is particularly named, or is included under general words, they are bound by such acts of parliament. For this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The original and true ground of this superiority, in the present case, is what we usually call, though somewhat improperly, the right of conquest: a right allowed by the law of nations, if not by that of nature; but which in reason and civil policy can mean nothing more, than that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies.b

But this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it became necessary some years ago to declare how that matter really stood: and therefore by statute 6 Geo. I. c. 5. it is declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, hath power to make laws to bind the people of Ireland.

Thus we see how extensively the laws of Ireland communicate with those of England: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland is, as in Wales, to those in England; a writ of

y cap. 23. z 4 Inst. 351.

a 12 Rep. 112. b Puff. L. of N. viii. 6. 24.

error (in the nature of an appeal) lying from the king's bench in Ireland to the king's bench in England,c as the appeal from the chancery in Ireland lies immediately to the house of lords here;

it being expressly declared, by the same statute 6 Geo. I. c. 5. that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. The propriety, and even necessity, in all inferior dominions, of this constitution, "that, though justice be in general administered by courts of their own, yet that the appeal in the last resort ought to be to the courts of the superior state," is founded upon these two reasons. 1. Because otherwise the law, appointed or permitted to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. 2. Because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of England.d

With regard to the other adjacent islands which are subject to the crown of Great Britain, some of them (as the isle of Wight, of Portland, of Thanet, &c.) are comprized within some neighbouring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of England. But there are others which require a more particular consideration.

And, first, the isle of Man is a distinct territory from England, and is not governed by our laws: neither doth any act of parliament extend to it, unless it be particularly named therein:

and then an act of parliament is binding there.e It was formerly a subordinate feudatory kingdom, subject to the kings of Norway; then to king John and Henry III. of England; afterward to the kings of Scotland; and then again to the crown of England: and at length we find king Henry IV. claiming the island by right of conquest, and disposing of it to the earl of Northumberland; upon whose attainder it was granted (by the name of the lordship of Man) to sir John de Stanley by letters patent

c This was law in the time of Hen. VIII; as appears by the ancient book, entituled, diversity of courts, c. bank le roy.

d Vaugh. 402. e 4 Inst. 284. 2 And 116

7 Henry IV.f In his lineal descendants it continued for eight generations, till the death of Ferdinando earl of Derby, A. D. 1594: when a controversy arose concerning the inheritance thereof, between his daughters and William his surviving brother: upon which, and a doubt that was started concerning the validity of the original patents, the island was seised into the queen's hands, and afterwards various grants were made of it by king James the first; all which being expired or surrendered, it was granted afresh in 7 Jac I. to William earl of Derby, and the heirs male of his body, with remainder to his heirs general;

which grant was the next year confirmed by act of parliament, with a restraint of the power of alienation by the said earl and his issue male. On the death of James earl of Derby, A. D. 1735, the male line of earl William failing, the duke of Atholl succeeded to the island as heir general by a female branch. In the mean time, though the title of king had long been disused, the earls of Derby, as lords of Man, had maintained a sort of royal authority therein; by assenting or dissenting to laws, and exercising an appellate jurisdiction. Yet, though no English writ, or process from the courts of Westminster, was of any authority in Man, an appeal lay from a decree of the lord of the island to the king of Great Britain in council.h But the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a commodious asylum for debtors, outlaws, and smugglers,) authority was given to the treasury by statute 12 Geo. I. c. 28. to purchase the interest of the then proprietors for the use of the crown: which purchase was at length compleated in the year 1765, and confirmed by statutes 5 Geo. III. c. 26 and 39. whereby the whole island and all it's dependencies, so granted as aforesaid, (except the landed property of the Atholl family, their manorial rights and emoluments, and the patronage of the bishoprici and other ecclesiastical benefices,) are unalienably

f Selden tit. hon 13. h 1 P. Wms. 329.

g Camden. Eliz A. D 1594.

i The bishopric of Man, or Sodor, or Sodor and Man, was formerly within the province of Canterbury, but annexed to that of York by statute 33 Hen. VIII. c. 31.

vested in the crown, and subjected to the regulations of the British excise and customs.

The islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an antient book of very great authority, entituled, le grand coustumier. The king's writ, or process, from the courts of Westminster, is there of no force; but his commission is ....

They are not bound by common acts of our parliaments, unless particularly named.k All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king and council, in the last resort.

Besides these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respect subject to the English laws. Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have either gained, by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held,l that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject,m are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance, and of protection from personal injuries .... The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue, (such especially as are inforced by penalties) the mode of maintenance for the established clergy, the jurisdiction

k 4 Inst. 286. l Salk. 411. 666. m 2 P. Wms. 75.

of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in council: the whole of their constitution being also liable to be new-modelled and reformed by the general superintending power of the legislature in the mother country. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the antient laws of the country remain, unless such as are against the law of God, as in the case of an infidel countryn .... Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there;1

they being no part of the mother country, but distinct (though dependent) dominions. They are subject however to the control of the parliament, though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named.

With respect to their interior polity, our colonies are properly of three sorts. 1. Provincial establishments, the constitutions of which depend on the respective commissions issued by the crown to the governors, and the instructions which usually accompany those commissions; under the authority of which, provincial assemblies are constituted, with the power of making local ordinances, not repugnant to the laws of England. 2. Proprietary governments, granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior regalities, and subordinate powers of Legislation, which formerly belonged to the owners of counties palatine: yet still with these express conditions, that the ends for which the grant was

n 7 Rep. 17. Calvin's case. Show. Parl. C. 31. [See also in the case of Campbell v. Hall. Cowp. Rep. 204. a great and elaborate argument of Lord Mansfield, in delivering the judgment of the court of king's bench.]

1. See Appendix, note E.

made be substantially pursued, and that nothing be attempted which may derogate from the sovereignty of the mother-country. 3. Charter governments, in the nature of civil corporations, with the power of making bye-laws for their own interior regulation, not contrary to the laws of England: and with such rights and authorities as are specially given them in their several charters of incorporation. The form of government in most of them is borrowed from that of England. They have a governor named by the king, (or in some proprietary colonies by the proprietor,) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England. Their general assemblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. But it is particularly declared by statute 7 and 8 W. III. c. 22. that all laws, bye-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect. And, because several of the colonies had claimed the sole and exclusive right of imposing taxes upon themselves, the statute 6 Geo. III. c. 12. expressly declares, that all his majesty's colonies and plantations in America have been, are, and of right ought to be, subordinate to and dependent upon the imperial crown and parliament of Great Britain; who have full power and authority to make laws and statutes of sufficient validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever. And this authority has been since very forcibly exemplified, and carried into act, by the statute 7 Geo. III. c. 59. for suspending the legislation of New-York; and by several subsequent statutes (c).

(c) [However, in the year 1782, by statute 22 Geo. III. c. 46. his majesty was empowered to conclude a peace with the colonies of New-Hampshire, Massachusetts-Bay, Rhode-Island, Connecticut, New-York, New-Jersey, Pennsylvania, the three Lower Counties on Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, in North-America, then in rebellion against their mother-country; and for that purpose, to repeal, or to suspend, the operation of any acts of parliament so far as they related

These are the several parts of the dominions of the crown of Great Britain, in which the municipal laws of England are not of force or authority, merely as the municipal laws of England. Most of them have probably copied the spirit of their own law from this original; but then it receives it's obligation, and authoritative force, from being the law of the country.

As to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of Hanover, and his majesty's other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and it's appendages, which fell to Henry the second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the sixth. They observed that, from that time, the maritime interests of England were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish all at once; and became much more considerable in Europe, than when her princes were possessed of a larger territory, and her councils distracted by foreign interests. This experience and these considerations gave birth to a conditional clause in the acto of settlement, which vested the crown in his present majesty's illustrious house, "that in case the crown and imperial dignity of this realm shall hereafter o Stat 12 & 13 Will III c 3

to the said colonies. Accordingly a peace was soon after concluded and the independence which the above-mentioned colonies had before declared was allowed to them; so that now they are as much independent of and unconnected with, Great Britain, as any other foreign nation,

come to any person not being a native of this kingdom of England, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of England, without consent of parliament,"

We come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales and Berwick, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law.p This main-sea begins at the low-water-mark. But between the high-water-mark, and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have divisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land when it is an ebb.q

The territory of England is liable to two divisions; the one ecclesiastical, the other civil.

1. The ecclesiastical division is, primarily, into two provinces, those of Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty-one, and York three: besides the bishoprick of the isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deaneries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every deanery is divided into parishes.r

A parish is that circuit of ground which is committed to the charge of one parson, or vicar, or other minister having cure of souls therein. These districts are computed to be near ten thousand in number.s How antient the division of parishes is, may

p Co. Litt. 260. q Finch. L. 78. r Co. Litt. 94. s Gibson's Britain.

at present be difficult to ascertain; for it seems to be agreed on all hands, that in the early ages of Christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some: or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy, and for other pious purposes, according to his own discretion.t

Mr. Camdenu says, England was divided into parishes by archbishop Honorius about the year 630. Sir Henry Hobartw lays it down, that parishes were first erected by the council of Lateran, which was held A D. 1179. Each widely differing from the other, and both of them perhaps from the truth; which will probably be found in the medium between the two extremes. For Mr. Selden has clearly shewn,x that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. And it appears from the Saxon laws, that parishes were in being long before the date of that council of Lateran, to which they are ascribed by Hobart.

We find the distinction of parishes, nay even of mother-churches, so early as in the laws of king Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary; that is, every man paid his own (as was before observed) to what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king Edgar,y that "dentur omnes decimae primariae ecclesiae ad quam parochia pertinet." However, if any thane, or great lord, had a church, within his own demesnes, distinct from the mother church, in the nature of a private chapel; then, provided such church had a coemetery or consecrated place of burial belonging to it, he might allot one third of

t Seld. of tith. 9. 4. 2 Inst. 643. Hob. 296. u in his Britannia, w Hob. 29. x of tithes, c 9. y c. 1.

his tithes for the maintenance of the officiating minister: but, if it had no coemetery, the thane must himself have maintained his chaplain by some other means; for in such case all his tithes

were ordained to be paid to the primariae ecclesiae or mother church.z

This proves that the kingdom was then generally divided into parishes; which division happened probably not all at once, but by degrees. For it seems pretty clear and certain, that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. The lords, as Christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general; and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. Which will well enough account for the frequent intermixture of parishes one with another. For, if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those outlying parcels.

Thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desart places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extraparochial, and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence

z. Ibid c. 2. See also the laws of king Canute, c. II. about the year 1030,

that he will distribute them for the general good of the church:2

yet extraparochial wastes and marsh-lands, when improved and drained, are by the statute 17 Geo. II. c. 37. to be assessed to all parochial rates in the parish next adjoining. And thus much for the ecclesiastical division of this kingdom.

2. The civil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tithings or towns. Which division, as it now stands, seem to owe it's original to king Alfred, who, to prevent the rapines and disorders which formerly prevailed in the realm, instituted tithings; so called, from the Saxon, because ten freeholders with their families composed one. These all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and if any offence was committed in their district, they were bound to have the offender forthcoming.b And therefore antiently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary.c One of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the headborough, (words which speak their own etymology) and in some countries the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing.d

Tithings, towns, or vills, are of the same signification in law; and are said to have had, each of them, originally a church and celebration of divine service, sacraments, and burials:e

though that seems to be rather an ecclesiastical, than a civil, distinction. The word town or vill is indeed, by the alteration of times and language, now become a generical term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which is or hath been the see of a bishop: and though the bishoprick be dissolved, as at Westminster, yet still it remaineth a city.f A borough is now

a 3 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.

b Flet. 1. 47. This the laws of king Edward the confessor, c. 20. very justly entitled, "summa et maxima securitas, per quam omnes statu firmissimo sustinentur; quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi &c."

c Mirr. c. 1. §. 3. e 1 Inst. 115. d Finch. L. 8. f Co. Litt. 109.

understood to be a town, either corporate or not, that sendeth burgesses to parliaments. Other towns there are, to the number sir Edward Coke saysh of 8803, which are neither cities nor boroughs; some of which have the privileges of markets, and others not; but both arc equally towns in law. To several of these towns there are small appendages belonging, called hamlets; which are taken notice of in the statute of Exeter,i which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills sir Henry Spelmank conjectures to have consisted of ten freemen, or frank-pledges, demi-vills of five, and hamlets of less than five. These little collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers; in which last case they are, to some purposes in law, looked upon as distinct townships. These towns, as was before hinted, contained each originally but one parish,

and one tithing; though many of them now, by the encrease of inhabitants, are divided into several parishes and tithings; and, sometimes, where there is but one parish there are two or more

vills or tithings.

As ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by an high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. In some of the more northern counties these hundreds are called wapentakes.l

The subdivision of hundreds into tithings seems to be most peculiarly the invention of Alfred: the institution of hundreds themselves he rather introduced than invented. For they seem to have obtained in Denmark:m and we find that in France a regulation of this sort was made above two hundred years before;

set on foot by Clotharius and Childebert, with a view of obliging each district to answer for the robberies committed in it's own division. These divisions were, in that country, as well military as civil: and each contained a hundred freemen, who were sub-

g Litt §. 164. k Gloss. 274.

h I Inst. 116. 1 Seld. in Fortesc. c. 24.

i 14 Edw. I. m. Seld. tit. of honour. 2. 5. 3.

ject to an officer called the centenarius; a number of which centenarii were themselves subject to a superior officer called the count or comes.n And indeed something like this institution of hundreds may be traced back as far as the antient Germans, from whom were derived both the Franks who became masters of Gaul, and the Saxons who settled in England: for both the thing and the name, as a territorial assemblage of persons, from which afterwards the territory itself might probably receive it's denomination, were well known to that warlike people. "Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur; et quod primo numerus fuit, jam nomen et honor est."o 2

An indefinite number of these hundreds make up a county or shire. Shire is a Saxon word signifying a division; but a county, comitatus, is plainly derived from comes, the count of the Franks; that is, the earl, or alderman (as the Saxons called him) of the shire, to whom the government of it was entrusted. This he usually exercised by his deputy, still called in Latin vice-comes, and in English, the sheriff, shrieve, or shire-reeve, signifying the officer of the shire; upon whom by process of time the civil administration of it is now totally devolved. In some counties there is an intermediate division, between, the shire and the hundreds, as lathes in Kent, and rapes in Sussex, each of them containing about three or four hundreds apiece .... These had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. Where a county is divided into three of these intermediate jurisdictions, they are called trithings,p which were antiently governed by a trithing-reeve .... These trithings still subsist in the large county of York, where by an easy corruption they are denominated ridings; the north, the east, and the west-riding. The number of counties in Eng-

n Montesq. Sp. L. 30. 17.

o Tacit. de morib. German. 6.

p LL. Edw. c. 34.

2. It is well deserving of legislative consideration whether a similar system of Jurisprudence is capable of being introduced into the Police of the Commonwealth. Especially that part of it, in which the number of slaves, and of free people of the same complexion with them, may render a more exact attention to the Police, and good order of the state, necessary.

land and Wales have been different at different times: at present they are forty in England, and twelve in Wales.

Three of these counties, Chester, Durham, and Lancaster, are called counties palatine. The two former are such by prescription, or immemorial custom; or, at least as old as the Norman conquest:q the latter was created by king Edward III, in favour of Henry Plantagenet, first earl and then duke of Lancaster;r whose heiress being married to John of Gant the king's son, the franchise was greatly enlarged and confirmed in parliament,s to honour John of Gant himself, whom, on the death of his father-in-law, the king had also created duke of Lancaster.t Counties palatine are so called a palatio; because the owners thereof, the earl of Chester, the bishop of Durham, and the duke of Lancaster, had in those counties jura regalia, as fully as the king hath in his palace; regalem potestatem in omnibus, as Bracton expresses it.u They might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace;

all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places, contra pacem domini regis.w And indeed by the antient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried: in a court-leet, contra pacem domini; in the court of a corporation, contre pacem ballivorum; in the sheriff's court or tourn, contra pacem vice-comitis.x These palatine privileges (so similar to the regal independent jurisdictions usurped by the great barons on the continent, during the weak and infant state of the first feodal kingdoms in Europey) were in all probability originally granted to the counties of Chester and Durham, because they bordered upon inimical countries, Wales and Scotland; in order that the inhabitants, having justice administered at home, might not be obliged to go out of the

q Seld. tit. hon. 2. 5. 8.

r Pat. 25 Edw. III. p. 1. m. 18 Seld. ibid. Sandford's gen. hist. 112. 4. 204. s Cart. 36 Edw. 111. n. 9. t Pat. 31 Edw. III. m. 33 Plowd. 215. 7. Rym. 138. u l. 3. c. 8. §. 4. w 4 Inst. 204. x Seld. in Heng. magn. c. 2. y Robertson. Cha. V. i. 60.

country, and leave it open to the enemy's incursions; and that the owners, being encouraged by so large an authority, might be the more watchful in it's defence. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexhamshire; the latter now united with Northumberland: but these were abolished by parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in 27 Hen. VIII, likewise, the powers before mentioned of owners of counties palatine were abridged; the reason for their continuance in a manner ceasing: though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them.z

Of these three, the county of Durham is now the only one remaining in the hands of a subject. For the earldom of Chester, as Camden testifies, was united to the crown by Henry III, and has ever since given title to the king's eldest son. And the county palatine, or duchy, of Lancaster, was the property of Henry of Bolingbroke, the son of John of Gant, at the time when he wrested the crown from king Richard II, and assumed the stile of king Henry IV. But he was too prudent to suffer this to be united to the crown; lest if he lost one, he should lose the other also. For, as Plowdena and sir Edward Cokeb observe, "he knew he had the duchy of Lancaster by sure and indefeasible title, but that his title to the crown was not so assured: for that after the decease of Richard II, the right of the crown was in the heir of Lionel duke of Clarence, second son of Edward III; John of Gant, father to this Henry IV, being but the fourth son." And therefore he procured an act of parliament, in the first year of his reign, ordaining that the duchy of Lancaster, and all other his hereditary estates, with all their royalties and franchises, should remain to him and his heirs for ever; and should remain, descend, be administered, and governed, in like manner, as if he never had attained the regal dignity: and thus they descended to his son and grandson, Henry V and Henry VI; many new territories and privileges being annexed to the duchy by the former.c Henry VI. being at-

z 4 Inst. 205. a 215. c Parl. 2 Hen. V. n. 30. 3 Hen. V. n. 15.

b 4 Inst. 205.

tainted in 1 Edw. IV, this duchy was declared in parliament to have become forfeited to the crown,d and at the same time an act was made to incorporate the duchy of Lancaster, to continue the county palatine (which might otherwise have determined by the attaindere) and to make the same parcel of the duchy: and, farther, to vest the whole in king Edward IV and his heirs, kings of England, for ever; but under a separate guiding and governance from the other inheritances of the crown. And in 1 Hen. VII another act was made, to resume such part of the duchy lands as had been dismembered from it in the reign of Edward IV, and to vest the inheritance of the whole in the king and his heirs for ever, as amply and largely, and in like manner, form, and condition, separate from the crown of England and possession of the same, as the three Henries and Edward IV, or any of them, had and held the same.f

The isle of Ely is not a county palatine, though sometimes erroneously called so, but only a royal franchise: the bishop having, by grant of king Henry the first, jura regalia within the isle of Ely; whereby he exercises a jurisdiction over all causes, as well criminal as civil.g

d 1 Ventr. 155. e 1 Ventr. 157.

f Some have entertained an opinion (Plowd. 320, 1, 2. Lamb. Archeion. 233. 4 Inst. 206.) that by this act the right of the duchy vested only in the natural, and not in the political person of king Henry VII, as formerly in that of Henry IV; and was descendible to his natural heirs, independent of the succession to the crown. And, if this notion were well founded, it might have become a very curious question at the time of the revolution in 1688, in whom the right of the duchy remained after king James's abdication, and previous to the attainder of the pretended prince of Wales. But it is observable, that in the same act the duchy of Cornwall is also vested in king Henry VII and his heirs; which could never be intended in any event to be separated from the inheritance of the crown. And indeed it seems to have been understood very early after the statute of Henry VII, that the duchy of Lancaster was by no means thereby made a separate inheritance from the rest of the royal patrimony;

since it descended, with the crown, to the half-blood in the instances of queen Mary and queen Elizabeth: which it could not have done, as the estate of a mere duke of Lancaster, in the common course of legal descent. The better opinion therefore seems to be that of those judges, who held (Plowd. 221) that notwithstanding the statute of Hen. VII (which was only an act of resumption) the duchy still remained as established by the act of Edward IV; separate from the other possessions of the crown in order and government, but united in point of inheritance.

g 4 Inst 220.

There are also counties corporate: which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of England have granted the privilege to be counties of themselves, and not to be comprized in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. Such are London, York, Bristol, Norwich, Coventry, and many others.3 And thus much of the countries subject to the laws of England.

3. The civil division of the territory of Virginia is primarily into Counties. Formerly, there were one or more parishes in every county: in each of which a minister was established with a salary, &c. The case of the poor was another object of the parochial division, which seems now to be virtually discontinued in all, (a) as it is actually in the new-made counties. The poor are now committed to the care of the Overseers of the Poor of the District, of whom the act of 1787, chap. 48. directs that there shall be not more than four in every county. (b). There are ninety-two counties at this day.

Every county is by the constitution entitled to send two representatives to the General Assembly (c): in every county there is also held a monthly court for the trial of all causes not exceeding twenty dollars or 800 pounds of Tobacco, and for other purposes, such as the proving and recording wills, deeds, granting letters of administration &c. and generally for the regulation of the business of the county; as also, a quarterly court for the trial and decision of all causes of a civil nature, both at common law, and in equity to any amount(d) they have also cognizance of pleas of the commonwealth in all cases where the punishment doth not extend to life or member, or to disqualification from office .... The justices of the county are judges of the courts, and the sheriff, or in case of his disability, the coroner, is the ministerial officer of the Court and County. The county lieutenants heretofore had the military arrangements of the county committed to their care, each county composing one or two separate regiments of militia, commanded by proper officers. But their office seems now to be discontinued (e). The

(a) Acts of 1785. c. 34. 1794. c 103

(b) Edition of 1794. c. 102.

(c) C. V. Art. 5. (d) V. L. Edi. 1794. c. 67. (e) V. L. Edi. 1794. c. 146 152.

The counties are by the constitution distributed into twenty-four senatorial districts, each district being entitled to send one senator(f) The arrangement of the counties into districts for this purpose was made by the same convention which established the Constitution (g) it has not since been altered, the new-made counties having uniformly been arranged to the same district as the county or counties from which they were taken.

The adoption of the constitution of the United States made it necessary to arrange the counties into several districts for two other purposes; the first for the choice of representatives to congress, which before the census were limited to ten(h), only, including Kentucky. The second for the appointment of electors to choose a president of the United States, whose number by the constitution is to be equal to the whole number of senators and representatives, which the State is entitled to. The arrangement for these purposes was made by the acts of 1788. chap. 1. and 2 .... But the census being completed, it was found that the State was not adequately represented in Congress; the act for apportioning the number of representatives among the States having assigned nineteen to Virginia, a new arrangement of the counties was made by the acts of 1792. chap. 1. and 30. The second census made a further arrangement necessary; at present it is as follows; viz:

Twenty-four senatorial districts.

Twenty-one electoral districts: no new act upon this subject having been made since the last census(*); and,

Twenty-two representatives, or congressional districts (+).

There are a great many towns, or more properly speaking sites for towns established by act of Assembly in Virginia. Scarce a Session of the Assembly passes, in which, to use the emphatical expression of Mr. Jefferson the law does not say "there shall be towns where Nature hath said there shall not." .... These towns have no other privileges that I know of, except conferring upon the freehold possessor of a lot therein, with a house thereon of twelve feet square, the right of suffrage (i).

There are also several corporate towns, which possess the privilege of making bye-laws for the regulation of their own police, with the further privilege of holding courts, but no other privilege, be-

(f) C. V. Art. 6.

(g) May, 1776. c. 6. Edi. 1794. c. 61.

(h) C. U.S. Art. 1. §. 2.

(*) See V. L. 1799. c. 1.

(+) V. L. 1801. c. 24.

(i) Act of 1785. c. 55. Edi. 1794. c. 17. As to the mode of supplying Vacancies if the Trustees and Directors of these unincorporated towns .... See L. V. Edi. 1794. c. 5 Sess. Acts, 1797. c. 65.

yond the common towns above mentioned. Of these Fredericksburg, Alexandria, Petersburg, Winchester, Staunton, and York, are either the whole, or the most considerable .... Norfolk is a corporate borough and is by the constitution (k) entitled to a representative in the Assembly. Williamsburg and Richmond are cities, a title which they seem to have derived from having been respectively the seat of government .... Both are entitled to a representative in the General Assembly; the former by the Constitution, (1) and the latter by an act passed in the year 1788. (m) In all the corporate towns, as well as in Richmond, Williamsburg and Norfolk the jurisdiction of the courts is somewhat more limited than that of the county courts (n).

(k.) Art. 5. (1.) Ibid. (m.) c. 63. (n.) V. L. 1787. c. 97. Edi. 1794. c. 67.

APPENDIX

TO

VOLUME FIRST. PART FIRST.

OF THE EDITION

OF BLACKSTONE'S COMMENTARIES.

BY

ST. GEORGE TUCKER.

APPENDIX

TO

VOLUME FIRST. PART FIRST.

OF

BLACKSTONE'S COMMENTARIES.

NOTE A.

1. Blackstone's Com. page 46. "Sovereignty and Legislature are indeed convertible terms; one cannot subsist without the other."

THE generality of expression in this passage might lead those who have not considered with attention the new lights which the American revolution has spread over the science of politics, to conclude with the learned commentator, that, "By the sovereign power, is meant the making of laws; and wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of justice may put on. It being 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."*

Before we yield our full assent to this conclusion, we must advert to a fact, probably truly stated by the learned author at the time he wrote; "That the original written compact of society had, perhaps, in no instance, been ever formally expressed, at the first institution of a state."+

* Blackstone's Commentaries, p. 49. + Ibid. 47.

In governments whose original foundations cannot be traced to the certain and undeniable criterion of an original written compact .... whose forms as well as principles are subject to perpetual variation from the usurpations of the strong, or the concessions of the weak; where tradition supplies the place of written evidence; where every new construction is in fact a new edict; and where the fountain of power hath been immemorially transferred from the people, to the usurpers of their natural rights, our author's reasoning on this subject will not easily be controverted .... But the American revolution has formed a new epoch in the history of civil institutions, by reducing to practice, what, before, had been supposed to exist only in the visionary speculations of theoretical writers .... The world, for the first time since the annals of its inhabitants began, saw an original written compact formed by the free and deliberate voices of individuals disposed to unite in the same social bonds; thus exhibiting a political phenomenon unknown to former ages. This memorable precedent was soon followed by the far greater number of the states in the union, and led the way to that instrument, by which the union of the confederated states has since been completed, and in which, as we shall hereafter endeavour to shew, the sovereignty of the people, and the responsibility of their servants are principles fundamentally, and unequivocally, established; in which the powers of the several branches of government are defined, and the excess of them, as well in the legislature, as in the other branches, finds limits, which cannot be transgressed without offending against that greater power from whom all authority, among us, is derived; to wit, the PEOPLE.

To illustrate this by an example. By the constitution of the United States, the solemn and original compact here referred to, being the act of the people, and by them declared to be the supreme law of the land, the legislative powers thereby granted, are vested in a congress, to consist of a senate and house of representatives. As these powers, on the one hand, are extended to certain objects, as to lay and collect taxes, duties, &c.* so on the other they are clearly limited and restrained; as that no tax

* C.U. S. Alt. 1. § 8

or duty shall be laid on articles exported from any state .... nor any preference given by any regulation of commerce or revenue to the ports of one state over those of another, &c.* These, and several others, are objects to which the power of the legislature does not extend; and should congress be so unwise as to pass an act contrary to these restrictions, the other powers of the state are not bound to obey the legislative power in the execution of their several functions, as our author expresses it: but the very reverse is their duty, being sworn to support the constitution, which unless they do in opposition to such encroachments, the constitution would indeed be at an end.+

Here then we must resort to a distinction which the institution and nature of our government has introduced into the western hemisphere; which, however, can only obtain in governments where power is not usurped but delegated, and where authority is a trust and not a right .... nor can it ever be truly ascertained where there is not a written constitution to resort to. A distinction, nevertheless, which certainly does exist between the indefinite and unlimited power of the people, in whom the sovereignty of these states, ultimately, substantially, and unquestionably resides, and the definite powers of the congress and state legislatures, which are severally limited to certain and deter-

* C. U.S. Art. 1. §. 9.

+ The following letter from the judges of the federal district court of Pennsylvania, to the president of the United States, may serve to illustrate the principle here contended for: "Sir, to you it officially belongs to "take care that the laws" of the United States "be faithfully executed." Before you, therefore, we think it our duty to lay the sentiments, which on a late painful occasion, governed us, with regard to an act passed by the legislature of the Union.

The people of the United States have vested in Congress all legislative powers "granted in the constitution."

They have vested in one supreme court, and in such inferior courts as the congress shall establish, "the judicial power of the United States"

It is worthy of remark, that in congress the whole legislative power of the United States is not vested: an important part of that power was exercised by the people themselves when they "ordained and established the constitution."

minate objects, being no more than emanations from the former, where, and where only, that legislative essence which constitutes sovereignty can be found.

"This constitution" is "the supreme law of the land." This supreme law "all judicial officers of the United States are bound, by oath or affirmation, to support."

It is a principle, important to freedom, that, in government, the judicial should be distinct from, and independent of, the legislative department. To this important principle, the people of the United States, in forming their constitution, have manifested the highest regard.

They have placed their judicial power, not in congress, but in "courts." They have ordained that the "judges" of those courts shall hold their offices "during good behaviour;" and that "during their continuance in office, their salaries shall not be diminished."

Congress have lately passed an act, "to regulate" (among other things) "the claims of invalid pensions."

Upon due consideration, we have been unanimously of opinion, that, under this act, the circuit court, held for the Pennsylvania district, could not proceed ....

1. Because the business directed by this act, is not of a judicial nature; .... it forms no part of the power, vested by the constitution, in the courts of the United States: the circuit court must consequently have proceeded without constitutional authority.

2. Because, if upon that business, the court had proceeded, it's judgments (for it's opinions are it's judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department, such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts: and consequently, with that important principle, which is so strictly observed by the constitution of the United States.

These, Sir, are the reasons of our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary either to the obvious directions of congress, or to a constitutional principle, in our judgment, equally obvious, excited feelings in us, which we hope never to experience again. Signed, James Wilson, John Blair, Richard Peters. Philadelphia, April 18th, 1792. American Museum, Vol. 12. Part 2d. Appendix, 2d page, 7,8. See also the letter from the judges of the federal district court of New York, to the president of the United States on the same subject, dated April 10th, 1792, and signed, by John Jay, chief justice of the United States, William Cushing, one of the associate judges of the supreme court, and James Duane, judge of the district court.

APPENDIX.

NOTE B.

OF THE SEVERAL FORMS OF GOVERNMENT.

THE concise manner in which the commentator, has treated of the several forms of government, seems to require that the subject should be somewhat further considered: this has been attempted in the following pages; in the course of which the student will meet with considerable extracts from the writings of Mr, Locke, and other authors, who have copiously treated the subject; of which an epitome, only, is here offered for the use of those who may not possess the means of better information.

PRELIMINARY REMARKS.

A nation or state is a body politic, or a society of men united together to promote their mutual safety, and advantage, by means of their union.

From the very design, that induces them to form a society that has its common interests, and ought to act in concert, it is necessary that there should be established a public authority, to order and direct what ought to be done, by each, in relation to the end of the association.

This political authority, is by some writers denominated the sovereignty;* but, for reasons which will be hereafter explained, I prefer calling it the government, or administrative authority of the state, to which each citizen, subjects himself by the

* Vattel B. 1. c. 1.

very act of association, for the purpose of establishing a civil society.

All men being by nature equal, in respect to their rights, no man nor set of men, can have any natural, or inherent right, to rule over the rest.

This right cannot be acquired by conquest, for the few, are, in a state of nature, unable to subdue the many.

Were it ever possible that the few could triumph over the many, the power thus acquired, can not be transmissible by inheritance, since it may fall into hands incapable of maintaining it.

The right of governing can, therefore, be acquired only by consent, originally; and this consent must be that of at least a majority of the people.*

Since no person possesses any inherent right to govern, or rule over, the rest; and since the few cannot possess, naturally power enough to subdue the many; the majority of the people, and, much more the whole body, possess all the powers, which any society, state, or nation, possesses in relation to its own immediate concerns.

This power which every independent state or nation, (however constituted, or by whatever name distinguished, whether it be called an empire, kingdom, or republic and whether the government be in its form a monarchy, aristocracy, or democracy, or a mixture or corruption of all them,) possesses in relation to its own immediate concerns, is unlimited, and unlimitable, so long as the nation or state retains its independence; there being no power upon earth, whilst that remains, which can control, or direct the operations, or will, of the state in those respects.

This unlimitable power, is that supreme, irresistable, absolute, uncontrollable authority, which by political writers in gen-

* Sec Rousseau's Social Compact.

cral, is denominated the SOVEREIGNTY*; and which is by most of them, supposed to be vested in the government, or administrative authority, of the state: but, which, we contend, resides only in the people; is inherent in them; and unalienable from them.+

Except in very small states, where the government is administered by the people themselves, in person, the exercise of the sovereign power is confined to the establishment of the constitution of the state, or the amendment of its defects, or to the correction of the abuses of the government.

The constitution of a state is, properly, that instrument by which the government, or administrative authority of the state, is created: its powers defined, their extent limited; the duties of the public functionaries prescribed; and the principles, according to which the government is to be administered, delineated.+

The GOVERNMENT or administrative authority of the state, is that portion, only of the sovereignty, which is by the constitution entrusted to the public functionaries: these are the agents and servants of the people.

Legitimate government can therefore be derived only from the voluntary grant of the people, and exercised for their benefit.

* 1. Blacks Com. 49.

+ "Power in the people," says Mr. Burgh, "is like light in the sun, native, original, inherent, and unlimited, by any thing human. In government it may be compared to the reflected light of the moon; for it is only borrowed, delegated and limited by the intention of the people, whose it is, and to whom governors are to consider themselves as responsible, while the people are responsible only to GOD, themselves being the losers, if they pursue a false scheme of politics." Political Disquisitions, vol 1. c. 2.

++ Paine's Rights of Man, part X. p. 42. Albany Edition.

The sovereignty, though always potentially existing in the people of every independent nation, or state, is in most of them, usurped by, and confounded with, the government. Hence in England it is said to be vested in the parliament: in France, before the revolution, and still, in Spain, Russia, Turkey and other absolute monarchies, in the crown, or monarch; in Venice, until the late conquest of that state, in the doge, and senate, &c.

As the sovereign power hath no limits to its authority, so hath the government of a state no rights, but such as are purely derivative, and limited; the union of the SOVEREIGNTY of a state with the GOVERNMENT, constitutes a state of USURPATION and absolute TYRANNY, over the PEOPLE.

In the United States of America the people have retained the sovereignty in their own hands: they have in each state distributed the government, or administrative authority of the state, into two distinct branches, internal, and external; the former of these, they have confided, with some few exceptions, to the state government; the latter to the federal government.

Since the union of the sovereignty with the government, constitutes a state of absolute power, or tyranny, over the people, every attempt to effect such an union is treason against the sovereignty, in the actors; and every extension of the administrative authority beyond its just constitutional limits, is absolutely an act of usurpation in the government, of that sovereignty, which the people have reserved to themselves.

These few preliminary remarks will be somewhat enlarged upon in the sequel.

SECTION I.

Government, considered as the administrative authority of a state, or body politic, may, in general, be regarded as coeval with civil society, itself: Since the agreement or contract by

which each individual may be supposed to have agreed with all the rest, that they should unite into one society or body, to be governed in all their common interests, by common consent, would probably be immediately followed by the decree, or designation, made by the whole people, of the form or plan of power, which is what we now understand by the constitution of the state; as also of the persons, to whom the administration of those powers should, in the first instance be confided. Considered in this light, government and civil society may be regarded as, generally, inseparable; the one ordinarily resulting from the other:

but this is not universally the case; man in a state of nature hath no governor but himself: in savage life, which approaches nearly to that state, government is scarcely perceptible. In the epoch of a national revolution, man is, as it were, again remitted to a state of nature: in this case civil society exists, though the constitution or bond of union be dissolved, and the government or administrative authority of the state be suspended, or annihilated. But this suspension is generally of short duration: and even if an annihilation of the government takes place, it is but momentary: were it otherwise, civil society must perish also.

Even during the suspension, or annihilation of government, the laws of nature and of moral obligation, which are in their nature indissoluble, continue in force in civil society. Hence social rights and obligations, also, are respected, even when there is no government to enforce their observance. This principle, during state convulsions, supplies the absence of regular government: but it cannot long supply its place; government, therefore, either permanent or temporary, results from a state of civilized society.

As the natural end and sole purpose of all civil power is the general good of the whole body, in which the governors, or public functionaries, themselves are necessarily included as a part, so, that civil power alone can be justly assumed, or claimed by any governor, or public functionary, which is delegated to him by the constitution of the state, as necessary, or conducive to the prosperity of the whole body united; what is not so delegated is

unjust upon whatever pretence it is assumed. Any contract or consent conveying useless or pernicious powers is invalid, as being founded on an error about the nature of the thing conveyed, and its tendency to the end proposed.*

The most natural method of constituting, or continuing civil power must, since the general use of letters, be some deed, or instrument of convention, between those who set about to establish a civil society or state, to serve as an evidence of their common intentions in forming such an association; to limit the powers which they meant to confer upon their public functionaries, and agents: and to prescribe the mode by which those agents shall be from time to time appointed, and the powers confided to them administered.+ And if it should happen that time and experience may demonstrate that the people have adopted, or consented to a pernicious plan; whose destructive tendency they have discovered; and now see their error; taking that plan to tend to their good, which they find has the most opposite tendency; they are free from its obligation, and may insist upon a new model of polity.++

These speculative notions may be regarded as having received the most solemn sanction in the United States of America; the supreme national council of which hath, on the most important occasion, which hath ever occured since the first settlement of these states by the present race of men, declared, "that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to abolish it, and to institute a new government, laying its foundations upon such principles, and organizing its powers in such form, as to them shall seem most

* Hutchinson's Mor. Phil. vol. 2. 221. + Ibid. 226. 227. ++ Ibid. 232

"likely to effect their safety and happiness."* Such is the language of that congress which dissolved the union between Great Britain and America. Few are the governments of the world, antient or modern, whose foundations have been laid upon these principles. Fraud, usurpation, and conquest have been, generally, substituted in their stead.

When a government is founded upon the voluntary consent, and agreement of a people uniting themselves together for their common benefit, the people, or nation, collectively taken, is free, although the administration of the government should happen to be oppressive, and to a certain degree, even tyrannical; since it is in the power of the people to alter, or abolish it, whenever they shall think proper; and to institute such new government as may seem most likely to effect their safety and happiness. But if the government be founded in fear, constraint, or force, although the administration should happen to be mild, the people, being deprived of the sovereignty, are reduced to a state of civil slavery. Should the administration, in this case, become tyrannical, they are without redress. Submission, punishment, or a successful revolt, are the only alternatives.

It is easy to perceive that a government originally founded upon consent, and compact, may by gradual usurpations on the part of the public functionaries, change its type, altogether, and become a government of force. In this case the people are as completely enslaved as if the original foundations of the government had been laid by conquest.

Thus, the nature of a government, so far as respects the freedom of the people, may be considered as depending upon the nature of the bond of their union. If the bond of union be the voluntary consent of the people, the government may be pronounced to be free; where constraint and fear constitute that bond, the government is no longer the government of the people, and consequently they are enslaved.

* Declaration of American Independence.

And, as the nature of the government, whether free, or the reverse, depends upon the nature of the bond of union, whether it be the effect of a voluntary compact, and consent, or of constraint, and compulsion; so the form of any government, depends altogether upon the manner in which the efficient force, and administrative authority of the state is distributed, and administered. But, if the efficient force or administrative authority be, altogether, unlimited; as if it extends so far as to change the constitution, itself, the government, whatever be its form, is absolute and despotic: the people in this case are annihilated ....

Their regeneration can only be effected by a revolution.

On the contrary, when the constitution is founded in voluntary compact, and consent, and imposes limits to the efficient force of the government, or administrative authority, the people are still the sovereign; the government is the mere creature of their will; and those who administer it are their agents and servants.

From hence it will appear that the nature of any government does not depend upon the checks and balances which may be provided by the constitution, since they respect the form of the government, only; but it depends upon the nature and extent of those powers which the people have reserved to themselves, as the Sovereign; or rather, upon the extent of those, which they have delegated to the government; or, which the government in the course of its administration may have usurped. An usurped government may be no less a government of checks and balances, than a government founded in voluntary consent and compact: witness the government of England, where the parliament according to the theory of their constitution (and not the people,) is the sovereign. The checks and balances of that Government have been the the topic of applause among all those who are opposed alike to the government of the people, or of an absolute monarch. But no people can ever be free, whose government is founded upon the usurpation of their sovereign rights; for by the act of usurpation, the sovereignty is transferred from the people, in whom alone it can legitimately reside, to those who by that act have manifested a determination to oppress them.

SECTION II.

"How the several forms of government we now see in the world at first actually began," says the learned commentator,* "is matter of great uncertainty, and has occasioned infinite disputes." The celebrated author of the Rights of Man observes+ that the origin of all governments may be comprehended under three heads; superstition, power, and the common rights of man. The first were governments of priestcraft, through the medium of oracles; the second being founded in power, the sword assumed the name of a sceptre; the third in compact; each individual in his own personal, and sovereign right entering into the compact, each with the other, to establish a government. A late political writer in England,++ remarks, that all the governments that now exist in the world, except the United States of America, have been fortuitously formed. They are the produce of chance, not the work of art. They have been altered, impaired, improved, and destroyed by accidental circumstances, beyond the foresight, or control of wisdom. Their parts thrown up against present emergencies, form no systematic whole. These fortuitous governments cannot be supposed to derive their existence from the free consent of the people; they are fruits of internal violence and struggles, between parties contending for the sovereignty; or of fraudulent and gradual usurpations of power by those to whom the people have entrusted the administration of the government, or of successful ambition, aided by the operation and influence of standing armies. A democratic government, however organized, must, on the contrary, be founded in general consent and compact, the most natural and the only legitimate method of constituting or continuing civil power, as was observed elsewhere. It is the great, and, I had almost said, the peculiar happiness of the people of the United States, that their constitutions, respectively, rest upon this foundation.

* 1. Vol. 48. + Page 40. Albany Edition. ++ Mackintosh on the French Revolution, pa. 115, 3d London edition.

SECTION III.

The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form by which the nation acts in quality of a body politic: how, and by whom the people ought to be governed, and what are the laws and duties of the governors.*

From this definition of a constitution, given us by Vattel, we might reasonably be led to expect, that in every nation not reduced to the unconditional obedience of a despotic prince, there might be found some traces, at least, of the original compact of society, entered into by the people at the first institution of the state. Yet it seems to be the opinion of the learned commentator that such an original compact had perhaps in no instance been expressed in that manner. But it is difficult not to imagine that such an original contract must have been actually entered into, and even, formally expressed, in every state where government hath been established upon the principles of democracy. The various revolutions in the antient states of Greece were often attended with the establishment of that species of government:

The original constitution of Venice was a pure democracy; and the constitutions of several of the Swiss cantons partake also, in a great degree, of the same character. Can we conceive such regulations to have been established without being in some degree formally expressed? That the evidences of them have not been handed down to us is not, I apprehend, a sufficient reason for rejecting the opinion that they have had existence. If, therefore, the opinion of the learned commentator be, that there never was an instance in which government had been instituted by voluntary compact, and consent of the people of any state, it would seem that there is room to doubt the correctness of such an opinion. If, on the contrary, the opinion be referred to the primitive act of associating by individuals totally unconnected in society, before, I shall not controvert it any further.

* Vattel, B. 1. c. 3 §. 27.

For it is evident that the foundations of the state or body politic of any nation may have been laid for centuries before the existing constitution, or form of government of such state. In England, the foundation of the state, (such as it has been from the time of the Heptarchy,) is agreed to have been laid by Alfred. And from that period till the union with Scotland, in the days of Queen Anne, the state remained unchanged: but the govern

ment during the same period was incessantly changing. Before the conquest it seems to have resembled a moderate, or limited monarchy. From that period it seems to have been, alternately, an absolute monarchy, a feudal aristocracy, an irregular oligarchy, and a government compounded, as at present, of three different estates, alternately, vieing with each other for the superiority, until it has finally settled in the crown. The foundations of the American States were laid in their respec

tive colonial charters: with the revolution they ceased to be colonies, and became independent and sovereign republics, under a democratic form of government. When they became members of a confederacy, united for their mutual defence against a common enemy, they renounced the exercise of a part of their sovereign rights; and in adopting the present constitution of the United States, they have formed a closer, and more intimate union than before; yet still retaining the character of distinct, sovereign, independent states. In all these permutations of their constitutions or forms of government, the states, or body politic of each of the members of the American confederacy, have remained the same, or nearly the same, as before the revolution.

Thus, as has been already mentioned, society may not only exist, though government be dissolved; but the state, or body politic, may remain the same, whilst the government is changeable. Whenever the form of government is fixed, the constitution of the state is said to be established; and this, as has been observed before, may be effected either by fraud, or by force;

or by a temporary compromise between contending parties; or, by the general, and voluntary consent of the people. In the two first cases, the constitution is merely constructive, according to the will and pleasure of those who have usurped, and continue

to exercise the supreme power. In the third case likewise, it is in general, merely constructive; each party contending for whatever power it hath not expressly yielded up to the other; or which it thinks it hath power to resume, or to secure to itself. Where the constitution is established by voluntary, and general consent, the people, and the public functionaries employed by them to administer the government, may be apprised of their several, and respective rights and duties: and the same voluntary, and general consent is equally necessary to every change in the constitution, as to its original establishment. The constitution may indeed provide a mode within itself for its amendment; but this very provision is founded in the previous consent of the people, that such a mode shall supercede the necessity of an immediate presumption of the sovereign power, into their own hands, for the purpose of amending the constitution; but if the government has any agency in proposing, or establishing amendments, whenever that becomes corrupt, the people will probably find the necessity of a resumption of the sovereignty, in order to correct the abuses, and vices of the government.

And herein, I apprehend, consists the only distinction between limited and unlimited governments. If the constitution be founded upon the previous act of the people, the government is limited. If it have any other foundation, it is merely constructive, and the government arrogates to itself the sole right of making such a construction of it, as may suit with its own views, designs, and interests: and when this right can be successfully exercised, the government becomes absolute and despotic. In like manner, if in a limited government the public functionaries exceed the limits which the constitution prescribes to their powers, every such act is an act of usurpation in the government, and, as such, treason against the sovereignty of the people, which is thus endeavored to be subverted, and transferred to the usurpers.

Inseparably connected with this distinction between limited and unlimited governments, is the responsibility of the public functionaries, and the want of such responsibility. Every delegated authority implies a trust; responsibility follows as the

shadow does its substance. But where there is no responsibility, authority is no longer a trust, but an act of usurpation. And every act of usurpation is either an act of treason, or an act of warfare.

Legitimate government, then, can be established only by the voluntary consent of the society, who by mutual compact with each other grant certain specified powers, to such agents as they may from time to time chuse, to administer the government thus established, and their agents are responsible to the society for the manner in which they may discharge the trust delegated to them. The instrument by which the government is thus established, and the powers, or more properly the duties, of the public functionaries and agents, are defined and limited, is the visible constitution of the state. For it has been well observed by the author of the Bights of Man,* "that a constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and whenever it cannot be produced in a visible form there is none. A constitution is a thing antecedent to a government, and a government, is only the creature of a constitution. It is not the act of the government but of the people constituting the government. It is the body of elements to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organized; the powers it shall have; the mode of elections; the duration of the legislative body, &c." ++Hence every attempt in any government

* Page 42. Albany Edition.

+ What (says Judge Patterson, 2. Dallas, 308.) is a constitution? It is the form

of government, delineated by the mighty hand of the people in which certain first principles of fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are legislatures? Creatures of the constitutions: They derive their power from the constitution:

It is their commission, and therefore all their acts must be conformable thereto, or they will be void. The constitution is the work or will of the people themselves, in their original sovereign, and unlimited capacity. Law is the work or will of the legislature in their derivation and subordinate capacity. The one is

the work of the Creator, the other of the creature. The constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it

to change the constitution (otherwise than in that mode which the constitution may prescribe) is in fact a subversion of the foundations of its own authority.

The acquiescence of the people of a state under any usurped authority for any length of time, can never deprive them of the right of resuming the sovereign power into their own hands, whenever they think fit, or are able to do so, since that right is perfectly unalienable. Nor can it be supposed, with any shadow of reason, that in a government established by the authority of the people, it could ever be their intention to deprive themselves of the means of correcting any defects which experience may point out or of applying a remedy to abuses which unfaithful agents may practice to their injury. The sovereign power therefore always resides ultimately, and in contemplation, in the people, whatever be the form of the government: yet the practical exercise of the sovereignty is almost universally usurped by those who administer the government, whatever may have been its original foundation.

It is the proper object of a written constitution not only to restrain the several branches of the government, viz. the legislative, executive, and judiciary departments, within their proper limits, respectively, but to prohibit the branches, united, from any attempt to invade that portion of the sovereign power which the people have not delegated to their public functionaries and agents, but have reserved, unalienably, to themselves.

A written constitution has moreover the peculiar advantage of serving as a beacon to apprise the people when their rights and liberties, are invaded, or in danger.

It has been before remarked, that the constitutions of the several United States of America, rest upon the ground of general consent, and compact, between the individuals of each state re-must move. In short the constitution is the sun of the political system, around which all legislative, executive, and judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the legislature, repugnant to the constitution is absolutely void.

spectively. To this it may be added, that in every state in the union (Connecticut and Rhode-Island excepted) their constitutions have been formally expressed in a visible form, or writing, and have been established by the suffrages of the people, in that form, since the revolution.

The federal government of the United States rests likewise upon a similar foundation; the free consent and suffrages of the people of the several states, separately, and independently taken, and expressed.

It is therefore a fundamental principle in all the American States, which cannot be impugned, or shaken; that their governments have been instituted by the common consent, and for the common benefit, protection, and security of the people, in whom all power is vested, and from whom it is derived: that their magistrates, are their trustees and servants, and at all times amenable to them: and that when any government shall be found inadequate, or contrary, to the purposes of its institution, a majority of the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

SECTION IV.

Political writers in general seem to be agreed that the several forms of government, which now exist, may be reduced to three; viz. 1st. the democratic; or that in which the body of the nation keeps in its own hands the right of commanding: 2dly. the aristocratic; or that in which that right is referred to, or usurped by, a certain number of citizens, independent of the concurrence or consent of the remainder; and 3dly, that in which the administration of the affairs of the state is vested in a single person, which is denominated a monarchy .... These three kinds may be variously combined, and united, and when so combined and united they obtain the general appellation of mixed governments; and sometimes of limited governments. Thus the Roman commonwealth, after the establishment of the tribunes

of the people, contained a mixture of democracy, with aristocracy: the former being vested in the assemblies of the people;

the latter in the senate: thus, also, the government of Great-Britain, in which there is supposed to be a portion of all three of these forms, is not unfrequently stiled a limited monarchy.

SECTION V.

When the body of the people in a state keeps in its own hands the supreme power, or right of ordering all things relative to the public concerns of the state, this, as was before observed, is a democracy. And, in such a state, says Montesquieu, the people ought to do for themselves, whatever they conveniently can; and what they can not well do, themselves, they should commit to the management of ministers chosen by themselves.

A democracy, therefore, may be either a pure and simple government, in which every member of the state assists in the administration of the public affairs, in person; or it may be representative, in which the people perform that by their agents, or representatives, to the performance of which in person, either insurmountable obstacles, or very great inconveniences, are continually opposed.

1. A simple democracy must necessarily be confined to a very small extent of territory: for if it be the duty of every citizen to attend the public deliberations and councils; to make laws; to administer justice: to consult and provide for the protection and security of the state against foreign enemies; or to compose domestic factions and strife; this will be impracticable if the territory of the state be extensive; and, moreover, the important business of agriculture, every species of industry, and the necessary attention to the domestic concerns of each individual, must be neglected; and where this continues to be the case for any considerable length of time, the state must inevitably perish.

Where the limits of a state are so confined as that the people can assemble as often as may be requisite, for the administration of the public concerns from every part of the state, such state must have too small a population to protect itself against the hostile designs and attacks of powerful, or ambitious neighbours; or, too small a territory to support the number of its inhabitants; either of which circumstances must continually endanger it's safety and independence.

A pure democracy seems, therefore, to be compatible only with the first rudiments of society, and civil government;

or with the circumstances and situation of a people detached from the rest of the world; as the inhabitants of St. Marino, in Italy, are said to be, by the inaccessible cliffs of the mountain, whose summit they inhabit. And it may be doubted (for reasons that will hereafter be mentioned), whether there ever has been such a form of civil government established among civilized nations. Perhaps nothing can be found so nearly approaching to it, as in the history of the Aborigines of this continent, as given us by the author of the history of Vermont.* The form and manner of the Indian government, as that historian informs us, was the most simple that can be contrived or imagined ....

There was no king, nobility, lords, or house of representatives, among them. The whole tribe assembled together in their public councils: their most aged men were the depositaries of what may be gathered from experience, observation, and a knowledge of their former transactions. By them their de-bates and consultations were chiefly carried on. Their councils were slow, solemn and deliberate, every circumstance that could be foreseen was taken into consideration. The whole was a scene of consultation and advice. And the advice had no other force or authority, than what it derived from its supposed wisdom, fitness and propriety.

The strength, or power of the government, adds this author, is placed wholly in the public sentiment. The chief has no authority to enforce his counsels, or compel obedience to his mea-

sures. He is fed and clothed like the rest of the tribe; his house and furniture is the same as that of others; there is no appearance or mark of distinction; no ceremony, or form of induction into office; no ensigns, or tokens of superiority, or power. In every external circumstance, the chiefs are upon a level with the rest of the tribe; and that only which gives weight and authority to their advice, is the public opinion of their superior wisdom and experience. Their laws stand upon the same foundation. There was no written law, record, or rule of conduct .... No public precedent, established courts, forms or modes of proceeding. The causes and occasions of contentions were few, and they did not much affect the tribe. And when the chiefs interposed in the concerns of individuals, it was not to compel but only to counsel and advise them. The public opinion pointed out what was right; and an offender who had been deeply guilty fled from the tribe, &c.

Were we not (after the example of the antient Greeks and Romans) in the habit of considering all those nations who are not seduced by the allurements of polished life, as barbarians, and savages, should we not esteem this picture of society, as the dream of a poet, describing the golden age, rather than a just representation of the actual state of a people, whom we despise for their ignorance; and of mankind, in those situations where the poisonous effects of artificial refinement have not yet manifested themselves.

And here it may not be amiss to mention another objection that is frequently made to a democratic government; because, if such an objection exists, it can only apply to such an one as we have just described. It is this; that all power being concentrated in the people, whenever the whole people assemble to deliberate upon any matter, there lies no appeal from their decision, however hasty or ill-advised it may be, there being no law, nor constitution to limit or control their determinations. Consequently they may revoke to day, what they established yesterday; and to-morrow, may adopt a new rule, different from either, which, in it's turn, may be again superceded the day after.

Hence, a perpetual fluctuation of councils is inseparable from a

pure democracy.

Another objection, which is also frequently urged against this species of government is, that it is, more than any other,

subject to be agitated by violent commotions excited by turbulent and factious men, who aim at grasping all the power of the state into their own hands, and sacrifice every obstacle to the attainment of their nefarious ends.

As the first of these objections applies only to a pure, or simple democracy, such as has been above described, it may be time enough to answer it, when we find ourselves in danger of falling into such a form of government. But I am inclined to suppose, that the objection would be altogether without force, where the state of society among those about to establish a new form of government may happen to be such, as that no other inconvenience, (which might be apprehended from such a form of government) should constitute an objection to its adoption. For where there is such a separation from the rest of the world, and such a simplicity of manners, united to the existence of a very small society, as to recommend the adoption of a government perfectly, and simply, democratic, we may venture to affirm that no very great inconvenience need be apprehended from in

stability of counsels. And with regard to the evils to be apprehended from violent commotions, we shall hereafter see, that they mark the period when the democracy is subverted, or in imminent danger of it, rather than that in which it flourishes:

and such commotions are equally incident to other governments during the period of their decline, as to democracies; and in such governments they are likewise more violent, and more fatal.

2. But all the disadvantages of a pure, or simple democracy, such as we have hitherto been speaking of, may, I apprehend, be effectually guarded against, by one that is representative: that is, in which the people administer the government by means of their agents, or representatives, chosen from time to

time by themselves, and removeable from the trust reposed in them whenever they cease to possess the public confidence, in their wisdom, integrity, or patriotism.*

It is not necessary that the limits of a representative democracy should be so confined, as to expose it to the danger of famine on the one hand, or to the incursions and attacks of powerful and ambitious nations on the other: no interruption need be given to agriculture and other necessary occupations; the constitution of the state may be permanently fixed, by the people, and the duties and functions of their representatives and agents so distributed and limited, as that the laws of the state, and not the versatile will of a giddy multitude, shall always prevail.

SECTION VI.

Governments, says an American writer, may be variously modified on the democratic principle. That which possesses the most energy, and at the same time best guards its principles, is the most perfect. A democratic government ought to have the most perfect energy; because there can be no excuse for disobedience to an authority which is delegated by the community at large, and only held during pleasure. But in communicating energy without gradual and cautious experiment, there is danger of communicating with it, the power of fencing in the government, and changing its principles. This was the danger appre-

* It has been said, that to call a government "a representative democracy, is a contradiction in terms, and as improper as to call it a democratic aristocracy." .... Swift's Laws of Connecticut, vol. 1, 21 .... With all deference to this opinion, I would ask, whom do these representatives represent? If they represent themselves, only, then I grant the government is not a representative democracy, but an elective oligarchy, or if you please, a democratic aristocracy: in which the people have indeed no power but to "chuse their rulers.".... But if these representatives represent their constituents, that is, the people;

then is their authority not their own, but the authority of the people; and a government administered either directly or indirectly by the authority of the people is a democracy, as is agreed on all hands: if administered by the people themselves, then is it a simple democracy; but if the people appoint some few from among themselves to represent them, then I conceive such a government play, with the strictest propriety, be called a representative democracy.

hended by many, at the time of adopting the present federal constitution. Nor was it a groundless apprehension, says the writer, to whom I am indebted for these remarks. The democratic principle being at that time, as it were, forlorn, destitute, and despised by the world, was in danger of being laughed out of countenance even in this country, and of being banished from it as a thing of too mean an origin to be admitted into polished societies.

I repeat it, says the same writer, that a democratic government ought to possess the most perfect energy; without which, true freedom, and the real and essential rights of man, are without protection. Many maxims taken from other governments are inapplicable to ours, and therefore with respect to us, are erroneous. All monarchies, however modified, are governments of usurpation, or prescription. In the exercise of their authority, the interest and pleasure of the governing party are more considered, than the general welfare: of course, the more energetic such authority is, the greater is the oppression felt from it. In governments by compact, where, of course, the authority is legitimate, and exercised for the general good, the reverse is true. Energy in such a government, is the best support that free-dom can desire; and freedom is more perfect in proportion to the degree of energy .... If the laws of a democracy prove unwholesome in their effects, it is because the members of the legislature have erred in their judgment, as the best and wisest men are liable to do; in which case, they will soon correct the error: or because they have been improperly chosen, in which case, it depends on the people to correct it, at the next election. In a democracy a legislator, as well as every other public functionary, is responsible to the community for the uprightness of his conduct. If he concurs in an unconstitutional act, he is guilty of usurpation, and contempt of the sovereign authority, which has forbidden him to pass the bounds prescribed by the constitution. He has violated his oath, and the most sacred of all duties. To omit him at the next election is not an adequate punishment for such a crime. Abuse of power is despotism, and the democracy that does not guard against it, is defective. If in any department of government, a man may abuse, or exceed his pow-

ers, without fear of punishment, the right of one man is at the mercy of another, and freedom in such a government, has no existence.

It is indispensably necessary to the very existence of this species of democracy, that there be a perfect equality of rights among the citizens: the unqualified use of the term equality has furnished the enemies of democracy with a pretext to charge it with the most destructive principles. By equality, in a democracy, is to be understood, equality of civil rights, and not of condition. Equality of rights necessarily produces inequality of possessions; because, by the laws of nature and of equality, every man has a right to use his faculties, in an honest way, and the fruits of his labour, thus acquired, are his own. But, some men have more strength than others; some more health; some more industry; and some more skill and ingenuity, than others;

and according to these, and other circumstances the products of their labour must be various, and their property must become unequal. The rights of property must be sacred, and must be protected; otherwise there could be no exertion of either ingenuity or industry, and consequently nothing but extreme poverty, misery, and brutal ignorance.

It is further indispensably necessary to the very existence of this species of democracy, that the agents of the people be chosen by themselves; that in this choice, the most inflexible integrity, be regarded as an indispensible constituent; and where that is found, it is but reasonable to be satisfied with something beyond mediocrity, in other qualities. A sound judgment united with an unfeigned zeal for the public weal, will be more certain of promoting and procuring it, than the most brilliant talents which have not the foundation of integrity for their support, and the stimulus of an active zeal for the public good, for its advancement. Besides, if none but men of the first talents were to be employed as public agents, even where no superiority of talents may be required, such a circumstance would inevitably discourage modest merit from offering its services, or accepting an offer of the public confidence, on any occasion: and such a discouragement would soon operate to sub

stitute the glare of superficial talents, for the solid worth of integrity, sound judgment, and love of the public weal.

In this species of democracy, it is further indispensably necessary to its preservation, that the constitution be fixed, that the duties of the public functionaries be defined, and limited, both as to their objects, and their duration; and that they should be at all times responsible to the people for their conduct. The constitution, being the act of the people, and the compact, according to which they have agreed with each other, that the government which they have established shall be administered, is a law to the government, and a sacred reverence, for it is an indispensible requisite in the character and conduct of every public agent. A profound obedience to the laws, and due submission to the magistrate entrusted with their execution, is equally indispensible on the part of every citizen of the commonwealth, in order to preserve the principles of this government from corruption. Neglect of the principles of the constitution by the public functionary is a substitution of aristocracy, for a representative democracy: such a person no longer regards himself as the trustee, and agent of the people, but as a ruler whose authority is independent of the people, to whom he holds himself in no manner accountable; and he so degenerates into an usurper and a tyrant. On the other hand, when any individual can with impunity defy the magistrate, or disregard the laws, the sinews of the government are destroyed, and the government itself is annihilated. As distant as heaven is from earth, says Montesquieu, is the true spirit of equality from that of extreme equality. The former does not consist in managing so that every body should command, or that no one should be commanded; but in obeying and commanding our equals.

The constitution of Athens, as established by Solon, was in some measure representative;* there was a senate, consisting of five hundred deputies who were annually elected; so were the archons, and other magistrates of the republic. But the whole body of the people likewise assembled, both ordinarily, on stated days, and also on extraordinary occasions. By the constitution

* Travels of Anacharsis. vol. 2 c. 14.

it proved that the people should ratify or reject all the decrees of the senate; but should make no decree which had not first passed the senate. This regulation in process of time was so far disregarded, as, that amendments to the decrees of the senate were at first proposed; which being acquiesced in, other decrees, afterwards, were substituted in stead of those of the senate. This innovation in the constitution changed the nature of the government entirely, and introduced all the mischiefs of faction, corruption and anarchy; the people delivered themselves over to the influence of their vicious and corrupt orators, and intriguing demagogues; and the event finally proved that the smallest innovations are capable of subverting the constitution of a state.

Thus while a democracy may be pronounced to be the only legitimate government, and that form of government, alone, which is compatible with the freedom of the nation, and the happiness of the individual, we may perceive that it is on every side surrounded by enemies, ready to sap the foundation, convulse the frame, and totally destroy the fabric. In such a government a sacred veneration for the principles of the constitution, a perfect obedience to the laws, an unremitting vigilance on the part of the people over the conduct of their agents, and the strictest attention to the morals and principles of such as they elect into every office, legislative, executive, or judiciary, seem indispensably necessary to constitute, and to preserve a sufficient barrier against its numerous foes.

The enemies of a democratic government fail not on all occasions to magnify, and to multiply, at the same time, all the disadvantages of this species of government, just as some curious opticians have contrived lenses, which represent the same object, magnified, in an hundred different places, at once. They are ready to mention on all occasions the tumults at Athens, and at Rome (which last was in no sense whatever a democracy,) and they repeat the banishment of Aristides, the imprisonment and fine of Miltiades, and the death of Socrates, with so much indignation, that one might almost suppose they were the only examples to be found in history, where virtuous men had ever been

oppressed by a government; or where cruelty had ever been exercised towards the innocent. But cruelty and even violence in a republic, are very different in their effects from cruelty, or violence in a monarch. In a republic ten thousand people, or the whole state, combine to oppress one man: in the other case, one individual inflicts torture upon a whole nation, or the whole human race. Not to mention the tyrants who have deluged their territories with the blood of their own subjects, and whose names are held in detestation by the whole human race, Alexander of Macedon, the favourite of historians, both antient and modern, crucified two thousand Tyrians round the walls of their city, because they would not submit to him as a conqueror, but offered to receive him as a friend, and ally; and the same abominable tragedy was afterwards repeated by him at Gaza.* In the scale of good and evil, is it better that a whole nation should be sometimes unjust, and even cruel, to a Socrates, or a Miltiades, or that one man should possess the power of tyrannizing over the whole human race?

But in America, such scenes of violence, tumult, and commotion, as convulsed and finally destroyed the republics of Athens and Rome, can never be apprehended, whilst we remain, as at present, an agricultural people, dispersed over an immense territory, equal to the support of more than ten times our present population. Nothing can be more inconsistent with the habits and interest of the farmer and the husbandman, than frequent and numerous assemblies of the people. In a country, whose population does not amount to one able bodied militia man for each mile square, would it not be absurdity in the extreme, to pretend, that the same dangers are to be apprehended, as in those antient cities; or in the modern capitals of France, or England, whose inhabitants, respectively, may be estimated as equal to the population of the largest state in the American confederacy? Or can we expect the same readiness in an independent yeomanry to excite, or to favour popular commotions, as in the Athenian populace, hired by their demagogues to attend the public meetings; or bribed, like the degenerate citizens of Rome, when they contented themselves with demanding from their rulers, * Robertson's History of Greece

bread) and the exhibition of public games, as all they required? Those who pretend to draw any parallel between those ancient republics, and the American states, must either be totally ignorant, or guilty of wilful misrepresentation. Attica was a small but an immensely populous state: the people had arrived at the summit of luxurious refinement, indolence, and corruption. The public orators were often secretly in the pay of the factious demagogues, contending for pre-eminence, within the state; or, of its enemies, without. The delusions of eloquence were constantly, and successfully employed to beguile an enervated and infatuated people to their destruction. The multitude were on all occasions agitated by the breath of their orators, as the waves of the sea by the wind. The Roman metropolis, on the other hand, was a military city, in which every citizen was a soldier, and a sovereign; for Rome was not the head of the republic, but the mistress of the empire, and of the globe. Her citizens may be regarded as the lords of the human race; in the forum they tyrannized over the rest of the world, and in the campus martins, over each other, A Marius, a Scylla, an Anthony, and an Octavius, were by turns their idols, and their scourges. Who can perceive the most distant resemblance between either of these republics, and the states of New-England, of Pennsylvania, of the Carolina's, or Virginia? Who will venture to compare those of Delaware, Georgia, Kentucky, or Tennessee, to them? But the improvements which the representative system has received in America, will, I trust, prove an effectual guard against those scenes of violence, which have stained the annals of the antient republics; without weakening, or in any degree impairing the public force, and energy, on the one hand, or endangering the liberties of the people, on the other; this leads us to a short digression concerning:

SECTION VII.

The analysis and separation of the several powers of government; which if not a discovery reserved for the eighteenth century, bids fair to be practically understood, more perfectly than in earlier times. It consists in the just distribution, of the

several distinct functions, and duties, of the public agents, according to their respective natures.

The essential parts of civil power may not improperly be divided into the internal, or such as are to be exercised among the citizens of a state, within the state itself, and the external, or such as may be exercised towards foreign nations, or different and independent states: the design of civil government being, both to promote peace and happiness, with an undisturbed enjoyment of all their rights, to the citizens of the state, by good order at home; and to defend the whole body, and all its members from any foreign injuries; and to procure them any advantages that may be obtained by a prudent conduct towards foreigners. These powers, which in all great empires, and monarchies, and even in smaller states, are generally united in one and the same man, or body of men, according to the system adopted by the states of the American confederacy, are, as was before observed, separated from each other; the former branch, being with some exceptions, confided to the state-governments, the latter to the federal government.

The former branch of these powers, or that which is to be exercised within the state, are, shortly, these. 1st. The power of directing the actions of the citizens by laws requiring whatever is requisite for this end, and prohibiting the contrary by penalties; determining and limiting more precisely the several rights of men, appointing the proper methods for securing, transferring, or conveying them, as the general interest may require, and even limiting their use of them, in certain cases, for the same general purpose. 2dly. Another power of the same class is that of appointing in what manner, and what proportion each one shall contribute towards the public expences out of his private fortune, or private gains, by paying taxes, as the state of the people will admit. These two branches of power are commonly called legislative; and in this state, and I believe in every other in the union, they are confided to two distinct bodies of men chosen at stated periods by the people themselves, one of which is called the house of delegates, or representatives, the

other the senate; the first being generally vested with the initiative authority, or right of commencing all laws; the other, that of amending, ratifying, or rejecting. Both bodies being absolutely independent of each other.

The power of jurisdiction in all cases of controversy between the citizens of the state about their rights, by applying the general laws to them; and of trying, and enforcing the penalties of the laws, against all such as are guilty of crimes which disturb the public peace and tranquility, constitutes a second subordinate branch of those powers which are to be exercised within the state; and this power is vested, partly in persons selected for their superior knowledge of the laws of the state, whose province it is to pronounce what the law is in each particular case, and who hold their office during good behaviour, who are stiled judges; and partly by persons indifferently chosen on the spot, to decide upon the matters of fact which are disputed in each case, who are denominated juries; being sworn well and truly to decide between the parties. And without their unanimous verdict, or consent, no person can be condemned of any crime. This is commonly called the judiciary department. And in this state no person can be at the same time a legislator, and a judge, or a member of the executive department of the government, of which it now remains to speak.

The power of appointing inferior magistrates (that of appointing the judges of the superior courts being by the constitution of this state vested in the legislature) and ministerial officers to take care of the execution both of the ordinary laws, and of the special orders of the state, given by the proper departments; and of collecting the public revenue; paying the public creditors; defraying the public charges; and commanding, and directing the public force, pursuant to the laws and constitution of the state, is ordinarily called the executive department: and in this state, this subordinate branch of internal powers, is confided to the discretion of another distinct body, composed of the governor, and the executive council, or council of state; by whose advice the governor administers the executive functions according to the laws of the commonwealth.

The external powers, or such as are to be exercised towards foreign, or other independent states, are these two; the first that of making war for defence of the state, and for this purpose arming and training the citizens to military service; and appointing proper officers to conduct them; erecting necessary fortifications; and establishing a naval force: And the second, that of making treaties, whether such as fix the terms of peace after a war, or such as may procure allies or confederates to assist in it, or such as without any view to war may procure, or confirm to a state and it's citizens, any other advantages by commerce, hospitality, or improvement in arts; and for this purpose the power and right of sending ambassadors, or deputies to concert such treaties with those of other nations .... To which we may add, thirdly, the power of deciding amicably any controversies which may possibly arise between different states, members of the same confederacy; all of which powers some authors include under one general name, viz. the federative; and all these, and some others of pretty extensive operation are vested in the federal government of the United States. The first appertain generally to the congress, composed like the state legislature, of two bodies, the one chosen by the people; the other appointed by the state legislatures. The second subordinate class belongs to the executive department, or president of the United States, assisted with the advice and consent of the senate. The third subordinate branch appertains to the federal judiciary; the judges of which, like those of the state, hold their offices during good behaviour, though differently appointed, viz. by the president and senate, instead of the legislative body as in this state.

Power thus divided, subdivided, and distributed into so many separate channels, can scarcely ever produce the same violent and destructive effects, as where it rushes down in one single torrent, overwhelming and sweeping away whatever it encounters in its passage.

This analysis and separation is perfectly impracticable in a simple democracy, and is equally irreconcileable to the principles of monarchy; for in both these the sovereign power seems to be indivisible, and exerts itself every where, and on all occa-

sions: In the former, the people being at once legislator, judge, and executive magistrate, and acted upon by the same impulse, they may at the same time make a law, and condemn the previous violation of it; and, as in the case of Socrates, in the same moment wreak their vengeance on the victim of their fury. But no such case can happen in an extensive confederacy, composed of states possessing respectively a representative form of government, and in which the constitution is fixed, the limits of power are defined and ascertained, and uniform laws, and modes of proceeding are prescribed to be observed in every case, according to its nature, before it occurs.

Thus, the sovereignty of the people, and the responsibility of their representatives and agents, being the fundamental principles of a representative democracy, however organized, or in other words, however the several powers of government may be distributed, or by whomsoever they may be exercised, the censorial power of the people, which is in effect a branch of the sovereign power, itself, may be immediately exercised upon that representative or agent who forgets his responsibility. It is this powerful control, which without a resumption of the sovereign power into the hands of the people, as is sometimes necessary for the reformation of the constitution, preserves the several branches of the government within their due limits: for the people where they are as vigilant, and attentive to their rights as they ought to be, will be sure to take part against those who would usurp either the rights of the people, or the proper functions of a different agent; and thus by their weight restore the constitutional balance. On the other hand, where such vigilance and attention to their just rights is wanting on the part of the people, the progress of usurpation is often as little perceived as that of a star, rising in the east whilst the sun is in the meridian. It reaches the zenith before the departure of day discovers it's ascent. But wherever there is a due vigilance on the part of the people, not only the errors or vices of the administration, but any defects in the fundamental principles of the government are more readily discovered in a representative democracy, than in any other form of government. This sometimes produces parties, but they are never violent until a general spirit of en

croachment, or of corruption, is discovered to exist in the public functionaries and agents; then indeed more violent parties arise, and such as may endanger the public happiness. But they arc engendered, and fostered by the government, and not as is falsely supposed, by the people. The latter are always more disposed to submission, than to encroachment, and often distrust their own judgments rather than suspect the integrity of their representative, or agent: a delusion from which they seldom recover until it is almost too late.

If any possible device can ensure happiness to the state, and security to the individual, it must be the establishment of this important principle of responsibility in the public agents; and its union with that other important principle, the separation and division of the powers of the government. Bold and desperate must that representative be who dares openly to violate his duty, where he knows himself amenable to the people for such a breach of trust. And wicked arid corrupt must be that administration, all the parts of which unite in one conspiracy against the peace and happiness of the people collectively, and the security of every individual of the community.

The limitation of power; the frequency of elections, by the body of the people; the capacity of every individual citizen to be elected to any public office, to which his talents and integrity may recommend him; and the responsibility of every public agent to his constituents, the people, are the distinguishing features of a representative democracy; and whilst the people preserve a proper sense of the value of such a form of government, will effectually guard it against the snares, intrigues, and encroachments of its counterfeit, and most dangerous enemy, (aristocracy) of which we shall now proceed to speak.

SECTION VIII.

An aristocracy is that form of government in which the supreme power is vested in a small number of persons. It may be absolute, or limited; absolute, where it is not founded in the

consent and compact of the society, over which the government is established; or limited, where that consent has been given, and the constitution and its powers have been fixed, and limited, at the time of such consent; but in which the other important characters of a representative democracy have not been preserved. It may likewise be temporary; as where the members of the supreme council, or senate, sit there only for a certain term, and then retire to their former condition: or perpetual, during their lives. It may likewise be hereditary; where the representatives of certain families (distinguished by the flattering epithet of the well-born,) are senators by birth: or elective, where either at certain periods the whole senate is chosen, or vacancies are supplied by election. And this election may be either popular: as where the body of the people chuse the person whom they may think proper to advance to the senatorial dignity; which is also called creation, where the person so chosen is advanced from the plebeian to the senatorial order;

or it may be made by the whole senatorial order, from among themselves; or by the senate itself, out of the members of the senatorial order: in which case it has been stiled co-optation:

or by the senate itself out of the order of plebeians; in which case, as in one before mentioned, it obtains the name of creation.

This form of government is capable of such an approximation, and resemblance, in its external form, to a representative democracy, that the one is frequently mistaken for the other. The discriminating features of a representative democracy, as we have before observed, are the limitation of power; the frequency of elections, by the whole body of the people; the capacity of every citizen of the state to be elected to any public office, to which his talents and integrity may recommend him; and the responsibility of the public agent to the people, for his conduct. If all, or either of these characters be wanting in the constitution of the state, it is an aristocracy, though it should be founded upon the consent of the people: if either of these characters be wanting in the mode of administering the government, it then becomes an aristocracy founded upon fraud and usurpation. Seldom has such a government failed to spring up, from

the immediate ruins of monarchy: never, perhaps, has it hitherto failed to undermine and subvert a government founded on the principles of a democracy. There is not in nature a spirit more subtle than aristocracy; nothing more unconfinable, nothing whose operations are more constant, more imperceptible, or more certain of success; nothing less apt to alarm in infancy; nothing more terrible at maturity.

.... .... .... Malum quo non aliud velocius ullum;

Mobilitate viget, vousque acquirit eundo;

Parva metu primo; mox sese attollit in auras, Ingrediturque solo et caput inter nubila condit.

VIRG.

In aristocracies where the whole power is lodged in a senate, or council of men of eminent stations or fortunes, one may sometimes expect sufficient wisdom and political abilities to discern and accomplish whatever the interest of the state may require. But there is no security against factions, seditions, and civil wars; much less can this form secure fidelity to the public inte

rest. The views of a corrupt senate will be the aggrandizing of themselves, their families, and their posterity, by all oppressions of the people. In hereditary senates these evils are certain; and

the majority of such bodies may even want a competent share of talents to discharge the duties of their stations. Among men born in high stations of wealth and power, ambition, vanity, insolence, and an unsociable contempt of the lower orders, as if

they were not of the same species, or were not fellow-citizens

with them, too frequently prevail. And these high stations afford many occasions of corruption, by sloth, luxury, and debauchery, the general fore-runners and attendants of the basest venality. An unmixed hereditary aristocracy, if not the worst, must be among the very worst forms of government, since it engenders every species of evil in a government, without producing any countervailing benefit, or advantage.

In a council of senators elected for life, by the people, or by any popular interest, there is more reason to expect both wisdom and fidelity, than in the case of an hereditary aristocracy:

but here the cogent tie of responsibility is wanting; and without

that, the ambitious views of enlarging their powers, and their wealth, will supercede all ideas of gratitude, or fidelity to those to whom they owe their elevation.

When new members are admitted into the senatorial order by an election, in which the right of suffrage is confined to such as have already obtained an admission into that order; or where the right of admission into the senate itself is vested in that body; the senate will infallibly become a dangerous cabal, (without any of the advantages desirable in civil polity,) and attempt to make their office hereditary. When senators are entitled to the privileges of that station in consequence of possessing a certain degree of wealth, the burthens of the state will, without exception, be thrown upon the poorer classes of the people. Thus aristocracy, whatever foundation it may be raised upon, will always prove a most iniquitous and oppressive form of government.

In absolute monarchies, and in perfect democracies, the seeds of aristocracy are contained in wealth; but they do not germinate so long as these governments remain unmixed: for power is not attached to riches in the former, they. being hidden from the sight there, lest they should tempt the grasp of the sovereign: in the latter, they minister to domestic luxury, or furnish the means of secret corruption only. The moment that wealth becomes influential, the principle of democracy is corrupted; when it is allied with power, the democracy itself is subverted; when this alliance becomes hereditary in any state, the democratic principle may be regarded as annihilated.

But the most easy and successful mode in which an aristocracy commences, or advances, consists in the secret and gradual abuse of the confidence of the people, in a representative democracy. Slight, and sometimes even imperceptible innovations, occasional usurpations, founded upon the pretended emergency of the occasion; or upon former unconstitutional precedents; the introduction of the doctrines of constructive grants of power; of the duty of self-preservation in a government, however constituted, or however limited; of the right of emi

nent domain, (or in other words, absolute power,) in all governments; these, with the stale pretence of the dangers to be apprehended from the giddy multitude in democratic governments, and a thousand other pretexts and arguments of the same stamp, form the ladder by which the agents of the people mount over the heads of their constituents, and finally ascend to that pinnacle of authority and power, from whence they behold those who have raised them with contempt, and treat them with indignation and insult. The only preventative lies in the vigilance of the people. Where the people are too numerous, or too much dispersed to deliberate upon the conduct of their public agents, or too supine to watch over that conduct, the representative will soon render himself paramount to, and independent of, his constituents; and then the people may bid a long farewell to all their happiness.

The first form of government established at Venice, was founded upon principles perfectly democratic. Magistrates were chosen by a general assembly of the people; and their power continued only for one year. This simple form of government (we are told by Doctor Moore,* whose enquires and researches upon this subject afford an useful, and an awful lesson to all democratic states;) remained uncorrupted for one hundred and fifty years. Upwards of three hundred years were afterwards employed in gradual, and almost imperceptible changes in the government, and encroachments upon the rights of the people, before that system of terror, which finally rendered the Venetian government the most tyrannical and formidable to its own citizens that the world has ever known, was completed by the establishment of the state inquisition. From that period the most complete despotism hath with unremitting rigor been exerted not only over the actions, but over the minds, of every citizen of that miserable state. A word, a look, nay silence itself, may be interpreted to be treasonable, in a government whose maxim is, "that it is better that an innocent person should suffer from an ill grounded suspicion, than the government should be endangered by any scrutiny into its conduct."

* Travels into Italy.

Should it be enquired how such important changes can possibly be effected where the supreme power is vested in the people, as in the American States, we may give the answer in the words of De Lolme.* The combination of those who share either in the actual exercise of the public power, or in its advantages, do not allow themselves to sit down in inaction. They wake, while the people sleep. Entirely taken up with the thoughts of their own power, they live but to encrease it. Deeply versed in the management of public business, they see at once all the possible consequences of measures. And, as they have the exclusive direction of the springs of government, they give rise, at pleasure, to every incident that may influence the minds of a multitude who are not on their guard; ever active in turning to their advantage every circumstance that happens, they equally avail themselves of the tractableness of the people during public calamities, and its heedlessness in times of prosperity. By presenting in their speeches arguments and facts, which there is no opportunity of examining, they lead the people into gross, and yet decisive errors. In confirmation of these observations he cites two instances from the history of his own country, which have occurred within the present century; and which may serve to shew how slight a movement of the political machine, may effect a total change in its operations. In Geneva in the year 1707 a law was enacted that a general assembly of the people, should be held every five years to treat of the affairs of the republic, but the magistrates who dreaded those assemblies soon obtained from the citizens themselves, the repeal of the law; and the first resolution of the people, in the first of these periodical assemblies, in the year 1712, was to abolish them for ever. The profound secrecy with which the magistrates prepared their proposals to the citizens on that subject, and the sudden manner in which the latter, when assembled, were acquainted with it, and made to give their votes upon it; and the consternation of the people when the result was proclaimed has confirmed many in the opinion that some unfair means were used. The whole transaction has been kept secret to this day: but the common opinion is, that the magistrates had privately instructed the secretaries in whose ear the citizens were to whisper their suffrages; when a citizen said "ap-

* P. 186. 187. 188 Phila Edi

probation, he was to be considered as approving the proposal of the magistrates; when he said "rejection," it was to be considered that he meant to reject the periodical assemblies .... In the year 1738 the citizens enacted at once into laws a small code of forty-four articles, by one single line of which they bound themselves forever to elect the four syndicts, or chiefs of the council of twenty-five out of the members of the same council; whereas they were before free in their choice. They, at that time, suffered the word approved to be slipt into a law; the consequence of which was to render the magistrates absolute masters of the legislature. So watchful, so active, so persevering, so noxious, so incompatible with the principles of a democratic government, are those of aristocracy, that we may venture to pronounce it the most dangerous enemy to a free government. If a single germ of aristocracy be once ingrafted upon a republican government, the stock will soon cease to bear any other branches.

In an aristocracy, says Montesquieu,* the republic is in the body of the nobles; and the people are nothing at all.

SECTION IX.

Monarchy is that form of government in which all the parts of the supreme power are committed to one person. And such a government may be either despotic, absolute, and unlimited;

or limited. In the former case the administration is vested altogether in the prince, without any check, or restriction whatsoever. In this government, according to Montesquieu, the prince is all in all. The people were all equal, and their equality is the most abject slavery. The principle of this kind of government is fear generated in ignorance.+ Submission constitutes the only security which the people enjoy: and the safety of the tyrant is alike the result of their tenors, and their ignorance.

In this government the will of the prince is the only law, manners and customs, says Montesquieu, supply the place of

* B. 8 c 5. + Spirit of Laws. B 3. c. 9. 10 B. 5. c. 14.

general laws, and the will of the prince constitutes the law in particular cases. Hence in a despotic government there are no laws which can be properly so called: laws are established:

manners are inspired; these proceed from a general spirit, those, from a particular institution. It is a capital maxim, that the manners and customs of a despotic empire should never be changed; for nothing would more speedily produce a revolution.

In China, the fundamental laws of the empire are spoken of; the emperor presumes not to change them: but on particular occasions he dispenses with them. They are binding upon all the world but himself; and so far binding even upon him, that he leaves them to his successor, to dispense with, as he had done before him.

A limited monarchy (if indeed such a form of government can be any where found) is one where by some original laws in the very constitution or conveyance of power, the quantity of it is determined, and limits set to it, with reservations of certain public rights of the people, not intrusted to the prince; and yet no court or council, constituted which does not derive its power from him. How far the government established over the Israelites in the person of Saul .... when Samuel their prophet "told

the people the manner of the kingdom, and wrote it in a book, and laid it up before the Lord," may have furnished a model for this species of monarchy, is foreign from our present enquiry.

Baron Montesquieu distinguishes that species of monarchy in which there are intermediate, subordinate, and dependent powers, likewise, from the absolute or despotic kind, above-mentioned: yet he acknowledges that even in this, the prince, is the source of all power, civil and political; but that he governs by fundamental laws. "And these," says he,* "necessarily suppose the intermediate channels through which the power flows. The most natural, intermediate, and subordinate

* B. 2. c 4.

power is that of the nobility. No nobility, no monarch, but there may be a despotic prince."

But I incline to refer this latter form of government to the class of mixt governments, rather than to the simple monarchical form. It partakes, however, of both; wherever the prince alone is the source of all power, the government is really absolute, in spite of forms. Though the establishment of different ranks, and orders may vary the condition of the people, whereby the burthens of government are unequally borne, yet this does not alter the nature of the government, unless there be some certain powers annexed to those different ranks, or some of them, which may on certain occasions control or check the administration of the monarch. Where no such incidental powers exist, the government is still absolute in the person of the prince: and wherever they do exist, their existence constitutes a mixt government. In Spain, since the suppression of the cortes, the monarchy is absolute; yet there is in Spain a splendid nobility, whose condition is far above the rest of the people, but, who, possess no power in respect to the operations of the government In France, before the late revolution; in Russia, in Prussia, and in Sweden under the government of its late monarch, this was also the case. In all. these countries the prince is supposed to govern by fixt laws; yet in all of them, I apprehend he was absolute. In England, the nobility form a separate branch of the supreme legislature; the power of the crown is according to the theory of that government, limited thereby; and this constitutes the English government, what is ordinarily stiled, a limited monarchy, but more properly a mixt government. Baron Montesquieu, at the same moment that he is speaking of that species of monarchy in which there are intermediate, subordinate, and dependent powers, subjoins; "that the prince is the source of all power political and civil." I am at a loss to conceive how the power of such a prince can be said to be limited. He considers indeed the ecclesiastical power in Spain and Portugal, as forming a barrier against the torrent of arbitrary power in those countries: but the ecclesiastical power can scarcely be considered as a dependent power on the crown in either of these kingdoms. It for a long time main-

tained a superiority over the civil power, in those, and most other countries in Europe; and even at this day, it might hazard a revolution in either of those two kingdoms, if the monarch should attempt to treat it as a subordinate, dependent power.

It must, however, be confessed, that there is a wide difference between those governments, where liberty hath never been known to exist, or has been long banished, as in Turkey, and in most of the Asiatic, and African states, and those, where absolute authority hath been acquired by gradual usurpations, or, violent exertions, made at particular epochs, to suppress those branches of the government, which, in mixt governments, are supposed to form some check upon the supreme executive authority: as was the case in the suppression of the cortes, or assembly of the nobles, in Spain, by Charles V. Of the states general, and provincial parliaments, in France, by Louis XIII. And of the diet of the States, and the senate of Sweden, by the late king Gustavus III. In these last cases, the laws relating to property being previously established, and the privileges of the several orders and ranks of persons, understood, and admitted by general custom, and implied consent, the assumption of power by the prince, was directed to the abolition of public, rather than private rights. In such states, the business of legislation is ordinarily confined to a single subject, that of revenue. The antient laws on all other subjects remaining unaltered, the people seem to possess some rights: whereas in the Turkish and Asiatic governments, the subject is held to be the slave of the sovereign and his property is held at his master's will. In the European monarchies, on the other hand, the higher orders, or nobility often, possess very extensive powers over the commonalty, or peasantry, as they are frequently stiled, without interfering with, or in any manner diminishing the authority of the government over either; but, on the contrary, strengthening and supporting it on every occasion, where its oppressions might incline the people to resistance, if they possessed the means of making it. And this may serve to explain the maxim, "no nobility, no monarch." The foundations of this species of monarchy are to be sought for, in the antient feudal governments, the prince having by degrees usurped, and annihilated all

those privileges which might possibly interfere with his own authority; yet leaving the nobility in possession of such as might enable them to maintain a superiority over the people, without danger to the throne. Such was the state of France under Louis XIV, and his successors.

If this kind of monarchy be considered as limited, it pro. ceeds not so much from the nature of the government, as from the character of the nation, previous to its establishment. If the prince from an apprehension of rousing that spirit of liberty, which has been smothered, rather than extinguished, pursues moderate measures, the people are flattered into a notion, that this circumstance is owing, equally, to the excellence of their government, and, to the benignity of their monarch. The distinction between the character of the prince, and the nature of the government, is soon lost sight of. Hence that profound veneration, that enthusiastic predilection for their own government, which is found almost universally, to prevail in all nations. The moderation of Augustus Caesar, after he was established in the empire of Rome, contributed not less to the annihilation of the spirit of liberty, in the nation, than his own previous tyranny, and that of his successors, did, to the enjoyment of it. The same moderation in the late king of Sweden's administration, after subverting the constitution, was calculated to obliterate the remembrance of that transaction, and even to persuade the nation that they were more free, than before he became absolute. His posterity will probably evince to them the change in their condition.

This species of monarchy being usually founded upon usurpation, rather than conquest, the prince does not always exert his authority to the utmost extent; but reserves such an exercise of it for extraordinary emergencies. When they occur, and the people feel new oppressions, if the spirit of liberty be not wholly extinguished among them, such oppressions are regarded as usurpations. From hence it happens that these governments are neither so durable, nor so tranquil, as those more rigorous despotisms, which are founded in conquest, and in which the spirit of liberty has been long since annihilated. In these last,

the people, being already reduced to the most abject slavery, are incapable of distinguishing between one act of tyranny and another: they are divested of all power of resistance; and therefore acquiesce in any new burthens which their cruel task-masters may impose, without presuming to murmur, or to complain:

but where the people are not yet reduced to such an abject state, a series of oppressions, heaped upon them from time to time, irritate and inflame their minds, much more than such an instantaneous accumulation of injuries, as would amount to a total privation of liberty at once. Reiterated oppressions, though comparatively slight, have often the same effect as superficial wounds;

a number of which are often more painful than a single one, that is mortal. The irritation of temper among the people, thus produced, generally manifests itself by open opposition, with the first favourable occasion; the suppression of such an opposition renders the government more absolute, despotic, and tyrannical:

on the other hand its success overturns, or changes the nature of, the government. Such appears to have been the origin and progress of the late revolution in France.*

The distinction of ranks in this kind of government contributes not, as we have already observed, to impose any check upon the government, in favor of the people, in general. The nobility, are, according to Montesquieu, at once the slaves of the monarch, and the despots of the people. Their privileges have no relation to the government, otherwise than to exempt them from the utmost severity of those oppressions, which are indiscriminately heaped upon the lower orders; but they are great, as they respect the lower orders. An admission into the higher class gains an exemption from that intermediate oppression, which these orders exercise over the inferior ranks of the people. This produces a stimulus which Montesquieu has dignified with the epithet honour; which, as he informs us, is the vital principle of this kind of monarchy, and excites men to aspire to preferments, and to distinguishing titles. The term honour, thus understood, conveys no very favourable impression to the ear of a republican.

* St. Estienne.

As, in a simple monarchy, the nation is as it were concentrated in the person of the prince, the lustre of the throne is often mistaken for the prosperity of the nation. Does a prince maintain an immense army in his territories; are the ports of his dominions filled with a powerful navy; does he not only inspire his neighbours with the terror of his arms, but even overawe remote nations by the greatness of his power: is he always on the watch from some specious cause, or pretext for a quarrel; does he ransack the records of nations to discover some obsolete claim to their territories; does he seize upon the dominions, or usurp the sovereignty of some weaker state; doth he carry fire and sword into every quarter; doth desolation mark the footsteps of his ambition; and the misery, or extermination of the human race point out the progress of his successes? such a prince hath arrived at the pinnacle of glory: and his frauds, avarice, injustice, cruelties, usurpation, and tyranny, are lost amidst the lustre of his diadem; and, together with the groans, execrations and curses of the victims to his ambition, are consigned to oblivion by the partial pen of the historian .... Let the most partial admirers of the most renowned princes of antiquity, or of modern ages call this an exaggerated picture of a flourishing monarchy! In a mixt hereditary monarchy the features may be somewhat softened; but they are still the features of an enemy to the human race, if we may judge from some of the fairest examples of that species of government.

SECTION X.

From an union of the principles of these three simple forms of government, or the combination of any two of them, arises what political writers denominate a mixt, or complex form of government. These complex forms are innumerable, according as monarchy, either hereditary or elective, is combined with some of the several sorts of aristocracies, or democracies, or with both. And further important diversities may arise according as the several essential parts of the supreme power are entrusted, differently, with the prince, the senate, or the popular assembly; or according to the mode in which the prince, or

either of those co-ordinate assemblies may themselves, be constituted. As whether the prince, or the members of the senate, be hereditary or elective, and if elective, for what periods, and out of what bodies, they may be elected; and by whom, and in what manner such election may be made. And again, by whom the popular assemblies shall be elected; for what periods; and whether any, and what qualifications in respect to estate, shall be required either in the electors, or in the representative.

Political writers seem to have differed in opinion respecting these kinds of mixt governments; for whilst some of them appear to regard such forms of government as corruptions of the simple forms, others have bestowed the most exalted encomiums on them, as uniting the advantages, and avoiding the inconveniences inseparable from each of them, singly. It is obvious, says Doctor Hutchinson,* that when by any plan of polity these four advantages can be obtained, wisdom in discerning, the fittest measures for the general interest; fidelity, with expedition and secrecy in the determination and execution of them;

and concord, and unity; a nation must have all that happiness which any plan of polity can give it; as sufficient wisdom in the governors will discover the most effectual means, and fidelity will chuse them; by expedition and secrecy they will be most effectually executed, and unity will prevent one of the greatest evils, civil wars, and seditions. The great necessity of taking sufficient precaution against these mischiefs of factions and civil wars, leads most writers in politics to another obvious maxim, viz. that the several parts of the supreme power if they are lodged by any complex plan in different subjects, some granted to a prince, others to a senate, and others to a popular assembly, there must in such case be some nexus imperii, or political bond, that they may not be able, or incline to act separately, and in opposition to each other. Without this, two supreme powers may be constituted in the same state, which may give frequent occasions to civil wars. This would be the case if both the senate, and popular assembly, claimed, separately, and independently, the legislative power; as it happened in Rome, after the tribunes held assemblies of the plebeians, without authority

* Hutch. Moral Phil vol. 2. 244.

of the senate, and obtained that the decrees of the plebeians should have the force of laws, while the senate insisted upon the like force to their decrees. The like was the case in many nations of Europe, while the ecclesiastical state pretended to make obligatory laws, and exercise certain jurisdictions, independently of the civil. If therefore the several essential parts of the supreme power are distributed among different persons, or courts, they must have a strong bond of union. If a prince has the executive, and the power of peace and war, while another body has the legislative, the power of raising tributes must be at least necessarily shared with the legislative council, that it never may be the prince's interest to make war without their concurrence: and the prince must have a share in the legislative. Without such bonds, laws might be enacted which the prince would not execute, or wars entered into which the nation would not support .... But there is no such necessity, adds the same writer, that all the parts of the supreme power should be committed either to one person, or to one council: And the other interests of the state may require that they should be divided.

It is evident, from the case here supposed, that this ingenuous writer had the British constitution (in which there is an hereditary prince, in whom the supreme executive authority, in. eluding the power of peace and war, is vested,) in his eye, when he wrote this passage, evidently calculated to justify that principle in the British constitution, that the regal character must possess some share in the legislature; as otherwise it might happen, that laws might be enacted, which he, being responsible to no one for his conduct, would not execute. That constitution must indeed be radically defective, where the executive authority may safely refuse to execute the law. But it may be doubted whether this defect is at all remedied, by allowing to the executive magistrate, not only an absolute negative over every act of the legislature, but in fact an initiative authority within the legislature itself: and this initiative has been so long sanctioned by practice, that it is now considered as the peculiar province of the principal minister of the crown,* to bring forward every spe-* See 1 Black. Com. p. 308.

cific proposition for a tax that may be made in the house of commons; to whom the initiative might, in this case, is said to belong, exclusively not only of the crown, but even of the house of lords, or second branch of the legislature. But to return to our subject.

Dr. Hutchinson* concludes, that none of the simple forms can be safe for a society. That if those deserve to be called the regular forms which are wisely adapted to the true ends of civil polity, all the simple forms are to be called rather rude and imperfect. That complex forms, made up of all three, will be found the best, and most regular, according to the general doctrine, both of ancients and moderns.

It was observed in another place, that governments may be variously modified upon the democratic principle: and it is perhaps susceptible of proof, that a representative democracy is more capable of such a modification, as may unite all the real advantages of the three simple forms of government, without hazarding the inconveniences actually inseparable from either, singly, than any other state, or body politic whatsoever.

The professed design, and obvious advantages of these mixt governments, is said to consist in the union of the public virtue and goodness of intention, to be found in popular assemblies, with the superior wisdom usually ascribed to a select council, composed of the most experienced citizens; and the strength, energy, and union of a government committed to the hands of a single person.

The benefits of the democratic, or popular branch, strictly speaking, may be preserved by a popular assembly, chosen annually, by the people of convenient districts, in fair and equal proportions, from among themselves; wherein the right of electing, and of being elected, shall be extended to every citizen having a sufficient evidence of a permanent common interest with, and at

* Hutch. Mor Phil. vol 2 258.

tachment to the community: which assembly should possess the initiative right in the establishment of all laws, and more especially such as may impose or create any burthen upon the state, or its citizens. To preserve this branch from falling under the influence of men of wealth, an agrarian system should be established, to prevent the accumulation of wealth in the hands of a few, and the establishment of patronage and dependence among the yeomanry or farmers, by reducing them from the state of absolute proprietors of their farms, to that of tenants or vassals, over whom, their rich landlords may acquire a kind of feudal authority and control. The best mode of obviating such an accumulation seems to be the partibility of estates among all the children, or collateral relations of persons dying intestate, and the absolute prohibition of all perpetuities in lands. If the members of this assembly be rendered incapable of holding, or accepting any lucrative office which may be created by the legislature, or filled by the choice of any other department of the government, their purity, integrity, and independence, will be unimpaired and unsuspected. They will not impose burthens which they must share in bearing, nor will they create offices, and increase emoluments, of which no part can arrive to themselves. They will not forfeit the confidence of their constituents by an abuse of the power confided to them, nor will they desire to extend those powers which another may be called upon the next year to exercise in their stead. If they have the power of nomination to office, in some of the more important ministerial and judiciary departments, in such mode as to give to the senate the power of selecting a smaller number from the whole number of persons nominated; and to the executive department, the final choice between those whom the senate may prefer; it might be expected that offices filled in such a mode, would be bestowed on persons eminent for their integrity, capacity, and diligence. If they were vested with a kind of censorial power likewise, or the right of impeaching such of the public agents as may betray their trust, and endanger the public happiness, such an assembly might be supposed to unite in it all the advantages which could be expected from a general assembly of the people in a democratic state.

If there be a second council, composed of fewer members, more advanced in age, and chosen from larger districts, by electors chosen for that especial purpose in the smaller districts by the people themselves, such a council may be presumed likely to possess more wisdom than any hereditary counsellors, and as much, both of wisdom, integrity, and of weight among the people, as any similar council constituted in any other mode: if one third, or one fourth of the members should in continual rotation go out, every third or fourth year, there would always remain a sufficient number who may be supposed to have acquired an intimate acquaintance with the nature of the business they would have to transact; whilst the short period of three or four years, at the end of which they must vacate their seats, and either return to the level of the rest of their fellow citizens, or owe their re-election to a general approbation of their conduct, would induce them constantly to bear in mind their duty to the public .... If no personal privileges were annexed to their station; and they, as well as the members of the popular assembly, were incapable of election to any other office; it would Insure an honest independence of conduct, unswayed by hopes, and unawed by fears, from any other branch of the government. If to such a council every act of the initiative or popular assembly, were necessarily submitted for their amendment, approbation, or rejection, it might be presumed that no laws would be enacted, the nature and consequence of which had not been fully considered and digested, before they should become obligatory upon the people. If in those cases where the popular assemblies might have the power of nomination to office, the character of those recommended by popular favour were to undergo a scrutiny in such a council, and the number of candidates were reduced to two, or at most three, out of whom the final appointment should be made, the demagogues of faction would probably be excluded from office, in favour of those citizens, whose virtues and talents might give them a just title to a preference. A senate thus constituted, and restricted, might also, perhaps, be safely entrusted with the power of trying impeachments; in those cases, at least, where a member of the supreme judicial court, should incur the notice of the censorial power of the popular assembly: In all other cases, I should presume, that the judicial courts, would be

the proper tribunals for such trials. In no simple aristocracy could a council as wise, as virtuous, and as faithful, be found.

The regal, or executive power of the state, might upon the same principles be lodged either in the hands of a single magistrate; or in such a magistrate with the advice and consent of a council, composed of a few select citizens, eminently distinguished for their fidelity, patriotism, wisdom, and experience, in the affairs of the state. The best mode of chusing such an executive body would probably be, by electors chosen from among the people, in several convenient districts, whose power should extend to that business, alone. If the chief magistrate be chosen in this manner, and for a short period; if after a certain period he be ineligible, for some years; if his council, (where such is assigned him) be composed of persons chosen in a similar manner, and going out by rotation at the end of two or three years, after their election; if they be precluded from any other lucrative office, during the period for which they may be elected; if they be liable to the censorial power of the popular assembly, and when removed from office return to the condition of private citizens; such an executive, on all necessary occasions, would possess all the energy, secrecy, unanimity, and dispatch to be found in a monarchy, without any danger of becoming the tyrants of the people, instead of their servants and agents. And a government so constituted would probably unite in itself every advantage which theorists ascribe to any complex, or mixt form of government, whatsoever.

But such a government would be a REPRESENTATIVE DEMOCRACY, and not a MIXT GOVERNMENT, of that nature which those writers prefer. For it is the essence of this latter species of government, that the several powers, which, together, share the administration, or as it is ordinarily called, the supreme power, or sovereignty, should be, (in theory, at least) entirely independent of each other. Thus in England, we are told that the legislature of the kingdom (in which the absolute rights of sovereignty, (or jura summi imperil) are said to reside) is entrusted to three distinct powers, entirely independent of each other; viz. the king, in whom the supreme executive power

is also lodged; the house of lords, composed of an aristocratical assembly of persons, selected for their piety, their birth, their wisdom, their valour, or their property; and thirdly, the house of commons, freely chosen from the people among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs, and attentive to different interests, composes the British parliament, and has the supreme disposal of every thing; there can no inconvenience be attempted by either of these branches," says judge Blackstone, "but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient."*

Such is the outline of the far-famed British constitution, as sketched by the masterly pen of judge Blackstone, whose able commentary, and high wrought panegyric, upon it; together with the elaborate researches, and encomiums of De Lolme; and the elegant eulogium of president Montesquieu, are well deserving the attentive perusal of the student. And, if to all these, the suffrage of a late exalted character in the government of the United States can afford any additional lustre, the British constitution may be selected, not only as the most perfect model of these kinds of mixt governments, but as the most stupendous monument of human wisdom.

It would far exceed the proposed limits of this essay to enter into a minute examination of its structure, and to point out the essential difference between its theoretical excellencies, and its practical defects, corruptions, and radical departures from those very principles, which have been supposed to constitute that superiority and pre-eminence, which these and other writers have ordinarily ascribed to it. But the following observations from the pen of a native, whose stile and manner evince a superiority both of genius and discernment, whilst they leave no doubt upon the mind, that he had seen and felt all that he describes, may lead us to conclude, that the practical abuses, corruptions, and oppressions of that government, are at least equal to the theoretical pre-eminence of its constitution.

* Blackstone's Commentaries, vol. 1. 51.

"It is perhaps susceptible of proof," says this nervous writer,* "that these governments of balance and control have never existed but in the visions of theorists. The fairest example will be the constitution of England. If it can be proved that the two members of the legislature who pretend to control each other arc ruled by the same class of men, the control must be granted to be imaginary. That opposition of interest which is supposed to preclude all conspiracy against the people can no longer exist. That this is the state of England, the most superficial observation must evince. The great proprietors, tided and untitled, possess the whole force of both houses of parliament, that is not immediately dependent on the crown.+ The peers have a great influence in the house of commons. All political parties are formed by a confederacy of the members of both houses. The court party by the influence of the crown, acting equally in both, supported by a part of the independent aristocracy: The opposition by the remainder of the aristocracy, whether commoners, or lords. Here is every symptom of collusion: no vestige of control. The only case where it could arise, is where the interest of the peerage, is distinct from that of the other great proprietors."

"Who can, without indignation," adds the same writer,++ "hear the house of commons of England called a popular representative? A more insolent and preposterous abuse of language is not to be found in the vocabulary of tyrants. The criterion that distinguishes laws from dictates, freedom from servitude, rightful government from usurpation, the law being an expression of the general will is wanting. This is the grievance which the admir-

* Mackintosh's Defence of the French Revolution, pa. 264. + Ibid. 337.

++ "It was reckoned, there were 232 members of the first parliament of George the first who had places, pensions, or titles: besides a great many brothers, and heirs apparent, of the nobility, or persons otherwise likely to be under undue influence; the number of which was not below fifty, which added together makes 282. A frightful majority," says Mr. Burgh, "on the side of the court. And there is no reason, he adds, to suppose the Augean stable is generally clearer now, than it was then." Pol. Disq. vol. 2. 44.

ers of the revolution in 1688, desire to remedy according to its principles. This is that perennial source of corruption, which has increased, is increasing, and ought to be diminished. If the general interest is not the object of the government, it is, it must be, because the general will does not govern. We are boldly challenged to produce our proofs: our complaints are asserted to be chimerical, and the excellence of our government is inferred from its beneficial effects. Most unfortunately for us, most unfortunately for our country, these proofs are too ready, and too numerous. We find them in that monumental debt, the bequest of wasteful, and profligate wars, which wrings from the peasant something of his hard-earned pittance; which already has punished the industry of the useful and upright manufacturer, by robbing him of the asylum of his house, and the judgment of his peers: to which the madness of political quixotism adds a million for every farthing that the pomp of ministerial empyricism pays; and which menaces our children with convulsions and calamities, of which no age has seen the parallel. We find them in the bloody roll of persecuting statutes that are still suffered to stain our code; a list so execrable, that were there no monument to be preserved of what England was in the eighteenth century, but her statute-book, she might be deemed still plunged in the deepest gloom of superstitious barbarism. We find them in the ignominious exclusion of great bodies of our fellow citizens from political trusts, by tests which reward falsehood, and punish probity; which profane the rites of the religion they pretend to guard, and usurp the dominion of the God, they profess to revere. We find them in the growing corruptions of those who administer the government, in the venality of a house of commons which has become only a cumbrous and expensive chamber for registering ministerial edicts .... in the increase of a nobility arrived to a degradation, by the profusion and prostitution of honours, which the most zealous partizans of democracy would have spared them. We find them, above all, in the rapid progress which has been made to silence the great organ of public opinion, the Press, which is the true control on ministers and parliaments, who might else, with impunity, trample on the impotent formalities, that form the pretended bulwark of our freedom .... The mutual control, the well-poised balance of the seve

ral members of our legislature, are the visions of theoretical, or the pretexts of practical politicians. It is a government not of check, but of conspiracy .... a conspiracy which can only be repressed by the energy of popular opinion."

If this be a true picture of the government of Great Britain (and whether it is or not, I shall leave it to others to enquire and determine,) the epoch can not be far distant, which Judge Blackstone hints at in the introduction to his commentaries.* If ever it should happen" says that enlightened author "that the independence of any one of the three branches of the legislature should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of the constitution." In which case, according to Sir Matthew Hale,+ the subjects of that kingdom are left without all manner of remedy.

Such, then, being the history of the British constitution, the most perfect model of these mixt governments, (as agreed on all hands by their admirers, and advocates,) that the world ever saw, we may apply to them generally, the observations of an excellent politician++ of the last century. "If all the parts of the state do not with their utmost power promote the public good; if the prince has other aims than the safety and welfare of his country;

if such as represent the people do not preserve their courage and integrity; if the nation's treasure is wasted; if ministers are allowed to undermine the constitution with impunity; if judges are suffered to pervert justice, and wrest the law; then is a mixed government the greatest tyranny in the world: it is tyranny established by law; and the people are bound in fetters of their own making. A tyranny that governs by the sword, has few friends but men of the sword; but a legal tyranny (where the people are only called to confirm iniquity with their own voices) has on its side the rich, the timid, the lazy, those that know law, and get by it, ambitious churchmen, and all whose livelihood depends upon the quiet posture of affairs: and the

* Blacks. Com. vol. 1. 51. + Of Parliaments, 49. ++ Davenant .... 11. 300. (quoted in Burgh's Pol. Disq vol. 3. 4)

persons here described compose the influencing part of most nations; so that such a tyranny is hardly to be shaken off."

SECTION XI.

I cannot better conclude what relates to the several kinds of government of which we have been speaking, whether simple, or complex, than by a summary of their several characters, corruptions, and transitions from one to another, for which I am indebted to the pen of a most intimate friend,* from whom I have borrowed several passages in the preceding part of this essay.

"In a democratical government all authority is derived from the people at large, held only during their pleasure, and exercised only for their benefit. The constitution is a social covenant entered into by express consent of the people upon the footing of the most perfect equality with respect to civil liberty. No man has any privilege above his fellow-citizens, except whilst in office, and even then, none but what they have thought proper to vest in him solely for the purpose of supporting him in the effectual performance of his duty to the public.

"In every other form of government, authority is acquired more by usurpation than by appointment of the people; it serves to give dignity and grandeur to a few, and to degrade the rest; and it is exercised more for the benefit of the rulers, than of the nation. The constitution is established upon a compromise of differences betwixt two or more contending parties, each, according to the means it possesses, extorting from the others every concession that can possibly be obtained, without the smallest regard to justice, or the common rights of mankind. It is a truce, by which the people are always compelled to surrender some, and generally a very large portion of their free-* T. T. T. formerly a delegate in congress from South Carolina, and after

wards a member of the house of representatives in congress, from the same

state.

dom; and of course they have a right to reclaim it, whenever more favourable circumstances put it in their power. If the prince, at the head of an armed force, reduces them to unconditional submission, he becomes a despotic monarch, and the people are in the most deplorable state of slavery. They have no longer the presumption to imagine themselves created for any other purpose than to be subservient to his will, and to administer to his pleasures and ambition. They even think it an honor to be made the base instruments of his tyranny. They look up to him with a reverential awe surpassing what they feel for the almighty parent of the universe. Such is the servility of man degraded by oppression.

"If the people retain still some resources which may render the issue of the contest doubtful, the prince for his own safety, most humanely grants them some privileges, and is then a limited monarch. They are often deluded into an opinion that what liberties they enjoy are entirely derived from his bounty; and taught to consider themselves as the happiest of mankind in having a sovereign who graciously condescends to allow them the possession of what happily he had not the power to wrest out of their hands.

"A despotic government is often both quiet and durable, because the tyrant, having an army at command, is thereby enabled to keep the people in awe and subjection, and to deprive them of all opportunity of communicating their complaints, or deliberating on the means of relief. Conspiracies happen often among the troops, the reigning prince is murdered, or dethroned, but another tyrant takes his place, and the nation remains in peaceable servitude, scarcely sensible of the re volution .... When the government is less despotic, the people have more both of power and inclination to resist oppression. They are not so thoroughly stripped of the means of defence, they have more opportunity of concerting measures, and their mental faculties retain more of their natural activity. Such a government must generally be contentious and changeable. The rulers can not be long satisfied with a limitation of prerogative, or the people with the abridgment of their privileges. The same is also

true in all mixt governments, the component, or balancing powers being ever at variance, until corruption, intrigue, or faction, establishes in one branch, a permanent superiority and influence over the others, or finally destroys them.

"Often it happens that the contest for power is betwixt the prince and nobles, the people having been previously enslaved. In this case the form of government is variable so far as relates to the prince and nobility; but the slavery of the people is lasting. This happens in all feudal governments.

"Sometimes the dispute is betwixt the bulk of the people, and a few leading men, who having been honoured with the confidence of their fellow-citizens, betray their trust, grasp at power, and endeavour to establish themselves in permanent superiority. Their success constitutes an aristocracy, which is generally a most oppressive government, although often for the sake of blinding the people, it is dignified with the name of a republic. Indeed every constitution, that has hitherto existed under that name, has partaken more or less of the nature of an aristocracy;

and it is this aristocratical leaven that has generally occasioned disorders and tumults in every republican government; and has so far brought the name into disrepute, (even in America, where the sovereignty is confessedly in the people,) that it is becoming a received opinion, that a commonwealth, in proportion as it approaches to democracy, wants those springs of efficacious authority, which are necessary to the production of regularity and good order, and degenerates into anarchy and confusion. This is commonly imputed to the capricious humour of the people, who are said to run riot with too much liberty, to be always unreasonable in their demands, and never satisfied, but when ruled with a rod of iron.

"These are the common place arguments against a democratic constitution. They are the pleas of ambition to introduce aristocracy, monarchy, and every species of tyranny and oppression. Unfortunate indeed for the liberties of mankind, if it be true, that to render them orderly, it is necessary to render them slaves. However generally this position may have been admit

ted, we may venture to deny that it is an inference fairly drawn from experience. Without better proof than has been adduced, we cannot justly admit that the people at large are capricious or unreasonable, or that a democratic government will be productive of disorder or tumult. The blame in such cases is indeed generally laid on the people, but it is easy to see that the charge is unjust. So far from being unreasonable in their demands, there is perhaps no one instance in history, where they have ventured at once to push their claims to the full extent of reason, and to make an ample demand of justice. They rarely complain at once of more than one or two grievances. When these are removed, they become sensible of others. In proportion as they acquire more freedom, they gain more strength of mind, and independence of spirit. They see further into the nature and extent of their own rights, and call louder for a restoration of them. This is called turbulence and caprice, but is in reality only a requisition of justice; which being either refused, or but partially and unwillingly granted, it is to the oppressors, and not the oppressed, that the mischief is to be imputed.

"It is thus, I apprehend, and no otherwise," continues the same writer, "that a government approaching to democracy is apt to be disorderly. The people have a right to complain, so long as they are robbed of any portion of their freedom; and if their complaints are not heard, they have a right to use any method of enfranchising themselves. On the contrary, I am inclined to believe, that in general the people are pretty easily satisfied when no injustice is intended towards them; and if it be allowed to reason a priori in such a case, I conclude that a real democracy, as it is the only equitable constitution, so it would be of all the most happy, and perhaps, of all the most quiet and orderly."

I shall conclude this summary with remarking, that if ever there was a country in which a fair experiment could be made of the efficacy, advantages, duration, and happiness to be derived from a democratic government, that country is United America.

SECTION XII.

Political bodies, whether great or small, if they arc constituted by a people formerly independent, and under no civil subjection, or by those who justly claim independency from any civil power they were formerly subject to, have the civil supremacy in themselves, and are in a state of equal right and liberty with respect to all other states, whether great or small. No regard is to be had in this matter to names; whether the body politic be called a kingdom, an empire, a principality, a dukedom, a country, a republic, or free town. If it can exercise justly all the essential parts of civil power, within itself, independently of any other person or body politic, and no other hath any right to rescind or annul its acts, it has the civil supremacy, how small soever it's territory may be, or the number of it's people, and has all the rights of an independent state*.

This independency of states, and their being distinct political bodies from each other, is not obstructed by any alliance or confederacies whatsoever, about exercising jointly any parts of the supreme power; such as those of peace and war, in leagues offensive and defensive. Two states, notwithstanding such treaties, are separate bodies and independent.+

They are then, only, deemed politically united when some one person, or council, is constituted with a right to exercise some essential powers for both, and to hinder either from exercising them separately. If any person or council is empowered to exercise all these essential powers for both, they are then one state:++ such is the state of England and Scotland, since the act of union made at the beginning of the eighteenth century, whereby the two kingdoms were incorporated into one, all parts of the supreme power of both kingdoms being thenceforward united and vested in the three estates of the realm of Great Britain: by which entire coalition, though both kingdoms retain their antient laws and usages in many respects, they are as effectually united and

* Hutcheson's Moral Phil. vol. 2. 239. Vattel. B. I. c. 1. § 4. + Ibid. Vattel. Ib. § 10. ++ Ibid.

incorporated, as the several petty kingdoms, which composed the heptarchy, were before that period.*

But when only a portion of the supreme civil power is vested in one person, or council for both, such as that of peace and war, or of deciding controversies between different states, or their subjects, whilst each state within itself exercises other parts of the supreme power, independently of all the others; in this case they are called systems of states: which Burlamaqui defines to be an assemblage of perfect governments, strictly united by some common bond, so that they seem to make but a single body with respect to those affairs which interest them in common, though each preserves its sovereignty full and entire, independently of all the others .... And in this case, he adds, the confederate states engage to each other only to exercise with common consent, certain parts of the sovereignty, especially those which relate to their mutual defence, against foreign enemies. But each of the confederates retains an entire liberty of exercising as it thinks proper, those parts of the sovereignty, which are not mentioned in the treaty of union, as parts that ought to be exercised in com-mon.+ And of this nature is the American confederacy, in which each state has resigned the exercise of certain parts of the supreme civil power which they possessed before (except in common with the other states included in the confederacy) reserving to themselves all their former powers, which are not delegated to the United States by the common bond of union.

A visible distinction, and not less important than obvious, occurs to our observation in comparing these different kinds of union. The kingdoms of England and Scotland are united into

* By the act of union, 5 Ann. c. 8. it is declared that the kingdoms of England and Scotland shall be united into one kingdom by the name of Great Britain: That the united kingdom shall be represented by one parliament: That the succession to the monarchy of G. B. shall be the same as was before settled with regard to England. The laws relating to trade, customs, and excise, shall be the same in Scotland, as in England. But all the other laws of Scotland shall remain in force but alterable by the parliament of Great Britain .... v. 1. Black. Com. 96.

+ Burlamaqui B. 2 part 2. c. 1. §. 40. 44.

one kingdom; and the two contracting states by such an incorporate union are, in the opinion of Judge Blackstone, totally annihilated, without any power of revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, are vested. From whence he expresses a doubt whether any infringements of the fundamental and essential conditions of the union, would of itself dissolve the union of those kingdoms, though he readily admits, that in the case of a federate alliance, such an infringement would certainly rescind the compact between the confederate states.* In the United States of America, on the contrary, each state retains its own antecedent form of government; its own laws, subject to the alteration and control of its own legislature, only; its own executive officers, and council of state: its own courts of judicature, its own judges; its own magistrates, civil officers, and officers of the militia; and, in short, its own civil state, or body politic, in every respect whatsoever. And by the express declaration of the twelfth article of the amendments to the constitution, the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. In Great-Britain, a new civil state is created by the annihilation of two antecedent civil states; in the American States, a general federal council, and administrative, is provided, for the joint exercise of such of their several powers, as can be more conveniently exercised in that mode, than any other; leaving their civil state unaltered; and all the other powers, which the states antecedently possessed, to be exercised by them, respectively, as if no union, or connection, were established between them.

The antient Achaia seems to have been a confederacy founded upon a similar plan; each of those little states had its distinct possessions, territories, and boundaries; each had its senate, or assembly, ifs magistrates and judges; and every state sent deputies to the general convention, and had equal weight in all determinations. And most of the neighbouring states, which, moved, by fear of danger, acceded to this confederacy, had reason

* See Black. Com. vol. 1. p. 96. 97. and 98. in notes.

to felicitate themselves. The republic of Lycia was a confederacy of towns, which they ranged into three classes, according to their respective importance. To the cities of the first rank, they allowed three votes, each, in the general council, to those of the second two, and to those of the third one .... The assembly of the Amphictyons, that assembly whose councils enabled Greece to withstand the power of the Persian monarchy, and whose decisions were held in such veneration that their sentences were seldom, or never, disputed, was composed of deputies from the several states of Greece, in number twelve, each of which sent to this grand council one, two, or three delegates, according to their respective importance. The Helvetic confederacy consists in the union of several republics. They have a common assembly, in which all matters interesting to the whole community are debated; whatever is there determined by a majority, binds the whole; they all agree in making peace, and declaring war; and the laws and customs, which prevail throughout the Swiss cantons, are, excepting the difference of religion between the Protestant, and Popish cantons, nearly the same. There are, however, some important differences both in constitution, and administration.*

The United Provinces of the Netherlands before their late revolution, maintained a common confederacy; each province possessing a constitution and internal government of its own, independent of the others: this government is called the states of that province; and the delegates from them formed the states-general, in whom the sovereignty of the whole confederacy was vested; but though a province might send two or more delegates, yet such province had no more than one voice in every resolution; and before that resolution could have the force of a law, it must have been approved by every province .... The council of state consisted likewise of deputies from the several provinces;

but its constitution was different from that of the states-general;

it was composed of twelve deputies, (some of the states sending two, and some one, only), who voted by persons, and not by provinces, as in the states-general. Their business was to prepare estimates, and ways and means, for raising the revenue, as

* Burgh's Pol. Disq. B. 1. c. 4.

well as other matters that were to be laid before the states-general.*

It is very probable, says the president Montesquieu,+ that mankind would have at length been obliged to live constantly under the government of a single person, had they not contrived a constitution, (such as we are now speaking of) that has all the internal advantages of a republican, together with the external force of a monarchical, government. It was these associations, he adds, that contributed so long to the prosperity of Greece. By these the Romans attacked the universe, and by these only the universe withstood their power: for when Rome was arrived to her highest pitch of grandeur, it was the associations beyond the Danube, and the Rhine, associations formed by terror, (such was the foundation of the American confederacy) that enabled the barbarians to resist her.

A confederate government, according to the same author, ought to be composed of states of the same nature, especially of the republican kind. The spirit of monarchy is war and the enlargement of empire and dominion: Peace and moderation is the spirit of a republic. These two kinds of government cannot naturally subsist in a confederate republic. Greece was undone as soon as the kings of Macedon obtained a seat among the Amphictyons. The confederate republic of Germany, composed of princes and free towns, subsists by means of a chief, who is in some measure the magistrate, and in some the monarch of the union.

These confederacies by which several states are united together by a perpetual league of alliance, are chiefly founded upon this circumstance, that each particular people chuse to remain their own masters, and yet are not strong enough to make head against a common enemy. The purport of such an agreement usually is, that they shall not exercise some part of the sovereignty there specified, without the general consent of each other. For the leagues to which these systems of states owe their rise

* Guthrie's Geography, article Netherlands. + B. 9. c. 13.

seem distinguished from others (so frequent among different states) chiefly by this consideration; that in the latter, each confederate people determine themselves by their own judgment to certain mutual performances, yet so that in all other respects they design not in the least to make the exercise of that part of the sovereignty, whence those performances proceed, dependent on the consent of their allies, or to retrench any thing from their full and unlimited power of governing their own states. Thus we see that ordinary treaties propose, for the most part as their aim, only some particular advantage of the states thus transacting;

their interests happening at present to fall in with each other; but do not produce any lasting union as to the chief management of affairs.* Such was the treaty of alliance between America and France in the year 1778, by which among other articles it was agreed, that neither of the two parties should conclude either truce or peace with Great Britain without the formal consent of the other first obtained; and whereby they mutually engaged not to lay down their arms until the independence of the United States should be formally or tacitly assured by the treaty or treaties which should terminate the war. Whereas in these confederacies of which we are now speaking, the contrary is observable; they being established with this design, that the several states shall forever link their safety one with another, and, in order to this mutual defence, shall engage themselves not to exercise certain parts of their sovereign power, otherwise than by a common agreement, and approbation.+ Such were the stipulations, among others, contained in the articles of confederation and perpetual union between the American states, by which it was agreed, that no state should without the consent of the United States in congress assembled send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with, any king, prince, or state: nor keep up any vessels of war, or body of forces, in time of peace; nor engage in any war, without the consent of the United States in congress assembled, unless actually invaded; nor grant commissions to any ships of

* Puffendorf's L. n. & b. B 7 c. 5. + Ibid. B. 7. c 5

war, or letters of marque and reprisal, except after a declaration of war, by the United States in congress assembled; with several others:* yet each state respectively retains its sovereignty, freedom, and independence, and every power, jurisdiction and right which is not expressly delegated to the United States in congress assembled.+ The promises made in these two cases here compared run very differently: in the former thus: "I will join you in this particular war, as a confederate, and the manner of our attacking the enemy shall be concerted by our common advice; nor will we desist from the war, till the particular end thereof, the establishment of the independence of the United States be obtained." In the latter thus: "none of us who have entered into this alliance will make use of our right, as to the affairs of war and peace, except by the general consent of the whole confederacy." We observed before, that these unions submit only some certain parts of the sovereignty to mutual direction. For it seems hardly possible that the affairs of different states should have so close a connection, as that all and each of them should look on it as their interest to have no part of the chief government exercised without the general concurrence. The most convenient method, therefore, seems to be, that the particular states reserve to themselves all those branches of the supreme authority, the management of which can have little or no influence, on the affairs of the rest.++ Thus the American states, have reserved to themselves the uncontrolled right of framing, establishing, and revoking their civil laws, and the administration of justice according to them, in all cases whatsoever, in which they have not specifically consented to the jurisdiction of the United States. But as to all affairs, on which the safety, peace, and happiness of the federal union, hath a joint dependence, these says Puffendorf, ought in reason to be adjusted by a common constitution.¦¦ This does not, however, says Barbeyrac,§ hinder but each confederated state may provide for

* Articles of confederation and perpetual union between the United States of America, Art. 6.

+ Ibidem, Art. 2. ++ Puffendorf, B. 7. c. 5. ¦¦ Puffendorf B. 7. c. 5. § Ibidem, in notis.

its particular safety, by repressing its rebellious subjects. And herewith the present constitution of the United States fully agrees. For although congress are bound to guarantee to every state in the union a republican form of government, and to protect each of them against invasion; and also against domestic violence: yet this last is only to be done where the legislature, or executive of the state (where the legislature cannot be convened) shall make the application. Nor does any thing in the constitution prohibit any state from keeping troops, or ships of war, except in time of peace; nor from engaging in war, if it be either actually invaded, or in such imminent danger as not to admit of delay.* Yet where no such invasion, or imminent danger exists, the engaging in war, whether offensive or defensive; and after that peace, as the result and issue of war, are among those things, which can not be undertaken, or adjusted, but by the common consent of the confederacy. To which we may add, with Puffendorf, taxes and subsidies as they contribute, and are necessary, to the mutual support; and alliances with foreign states, as they may promote the common safety. It falls under the same head of duties, that in case any dispute arise among the confederates themselves, the other members who are unconcerned shall immediately interpose their mediation, and not suffer the controversy to come to blows.+ Or the confederates may establish some common tribunal by which their differences may be decided, such as the Amphictyonic council among the Grecian states; or as the supreme court of the United States, which hath original jurisdiction by the federal constitution, in all cases of controversy between two or more states. As for those other matters, which seem not so necessary to be transacted in common, (among which Puffendorf reckons negotiations of traffick, such as taxes, for the particular use of any single state, the constituting of magistrates, the enacting laws, the power of life and death over their respective citizens, or subjects, the ecclesiastical authority, where such an authority is permitted, and the like; there is no reason, but that they may be left to the pleasure of each distinct government: though at

* C.U.S. Art. 4 & 2 + Puffendorf, B. 7. c. 5

the same time particular states ought to manage their privileges as that they shall cause no disturbance in the general union .... ....

Whence it is evident, that one or more of the allies cannot be hindered by the rest, from exercising, according to their own judgment, such parts of the civil administration, as are not in the compact of union, referred to the common direction.* And this, with the exception of commercial treaties (which, for very cogent reasons, were by the common consent surrendered by the respective states, to the general confederacy,) may be considered as sketching the general outline of the American union.

Since, in these systems, it is necessary that there should be a communication of certain affairs expressed in the compact of union; and since this cannot be conveniently done by letters;

and since, even where this could be done, delays might be attended with great prejudice, or inconvenience to the confederacy, a determinate time and place ought to be settled for the holding assemblies and one or more persons appointed, who shall have power to call the states together, in case of any extraordinary business, which will not admit of delay. Though it seems a much more compendious method to fix a standing council, made up of persons deputed by the several confederates, who shall dispatch business according to the tenor of their commission; and, to whom the ministers of the confederacy in foreign parts, shall give an immediate account of their proceedings, and who shall treat with the ambassadors of other nations, and conclude business in the general name of the confederates; but shall determine nothing that exceeds the bounds of their commission. How far the power of this council of delegates extends, is to be gathered from the words of the compact itself, or from the warrant under which they act. This is certain; that the power whatever it be, is not their own, but derived to them from those whom they represent; and although the decrees, which they publish, pass solely under their own name, yet the whole force and authority of them flows from the states, themselves, by whose consent such a council hath been erected: so that the deputies are no more than ministers of the confederate states, and are altogether as unable to enjoin any thing by their own

* Puffendorf, B. 7. c. 5.

proper authority, as an ambassador is to command and govern his master*.

SECTION XIII.

The dissolution of these systems happens, when all the confederates by mutual consent, or some of them, voluntarily abandon the confederacy, and govern their own states apart, or a part of them form a different league and confederacy among each other, and withdraw themselves from the confederacy with the rest. Such was the proceeding on the part of those of the American states which first adopted the present constitution of the United States, and established a form of federal government, essentially different from that which was first established by the articles of confederation, leaving the states of Rhode Island and North Carolina, both of which, at first, rejected the new constitution, to themselves. This was an evident breach of that article of the confederation,+ which stipulated that those "articles should be inviolably observed by every state, and that the union should be perpetual; nor should any alteration at any time thereafter be made in any of them, unless such alteration be agreed to in the congress of the United States, and be afterwards confirmed by the legislatures of every state." Yet the seceding states, as they may be not improperly termed, did not hesitate, as soon as nine states had ratified the new constitution, to supersede the former federal government, and establish a new form, more consonant to their opinion of what was necessary to the preservation and prosperity of the federal union. But although by this act the seceding states subverted the former federal government, yet the obligations of the articles of confederacy as a treaty of perpetual alliance, offensive and defensive, between all the parties thereto, no doubt remained; and if North Carolina and Rhode Island had never acceded to the new form of government, that circumstance, I conceive, could never have lessened the obligation upon the other states to perform those stipulations on their parts which the states, who were unwilling to

* Puffendorf, B. 7. c. 5. + Article 13.

change the form of the federal government, had by virtue of those articles a right to demand and insist upon. For the inadequacy of the form of government established by those articles could not be charged upon one state more than another, nor had North Carolina or Rhode Island committed any breach of them; the seceding states therefore had no cause of complaint against them. On the contrary, these states being still willing to adhere to the terms of the confederacy, had the right of complaining, if there could be any right to complain of the conduct of states endeavouring to meliorate their own condition, by establishing a different form of government. But the seceding states were certainly justified upon that principle; and from the duty which every state is acknowledged to owe to itself, and its own citizens, by doing whatsoever may best contribute to advance its own happiness and prosperity; and much more, what may be necessary to the preservation of its existence as a state*. Nor must we forget that solemn declaration to which everyone of the confederate states assented+ .... that whenever any form of government is destructive of the ends of its institution, it is the right of the people to alter or abolish it, and to institute new government. Consequently whenever the people of any state, or number of states, discovered the inadequacy of the first form of federal government to promote or preserve their independence, happiness, and union, they only exerted that natural right in rejecting it, and adopting another, which all had unanimously assented to, and of which no force or compact can deprive the people of any state, whenever they see the necessity, and possess the power to do it. And since the seceding states, by establishing a new constitution and form of federal government among themselves, without the consent of the rest, have shewn that they consider the right to do so whenever the occasion may, in their opinion, require it, as unquestionable; we may infer that that right has not been diminished by any new compact which they may since have entered into, since none could be more solemn or explicit than the first, nor more binding upon the contracting parties. Their obligation, therefore, to preserve the present constitution, is not greater than their former obligations

* See Vattel, B 1. c 2. and the other writers on government, generally. + Declaration of Independence.

were, to adhere to the articles of the confederation; each state possessing the same right of withdrawing itself from the confederacy without the consent of the rest, as any number of them do, or ever did, possess. Prudence, indeed, will dictate, that governments established by compact should not be changed for light or transient causes; but should a long train of abuses and usurpations, pursuing invariably the same object, evince a design in any one of the confederates to usurp a dominion over the rest;

or, if those who are entrusted to administer the government, which the confederates have for their mutual convenience established, should manifest a design to invade their sovereignty, and extend their own power beyond the terms of compact, to the detriment of the states respectively, and to reduce them to a state of obedience, and finally to establish themselves in a state of permanent superiority, it then becomes not only the right, but the duty of the states respectively, to throw off such government, and to provide new guards for their future security*. To deny this, would be to deny to sovereign independent states, the power which, as colonies, and dependent territories, they have mutually agreed they had a right to exercise, and did actually exercise, when they shook off the government of England, first, and adopted the present constitution of the United States, in the second instance.

Another case from which a dissolution of these confederacies may follow, may be, where from any accident, or want of concert among the confederate states, the legislative or executive authority of the federal government may happen to be suspended, so as that no legislature or executive magistrate can, for a long space of time, succeed to and exercise the functions of the former. As if a majority of the states should refuse any longer to chuse representatives, or to supply the vacancies in the senate, in either of these cases it would seem that the legislature would be destroyed; on the other hand, if it should happen that no president should be chosen at the period when a president ought to be elected, here there would be a suspension both of the legislature and the executive, inasmuch as the president is an essential constituent part of the legislative body, since all

* Declaration of Independence.

bills, before they become law, must be submitted to him for his approbation. Now whenever the administration of any government is wholly suspended, a dissolution of the government follows of course; for, as Mr. Locke observes, whenever there is no remaining power* within the community to direct the public force, or provide for the necessities of the public, there certainly is no government left; where laws cannot be executed at all, it is all one as if there were no laws. And if this be a sufficient reason for the dissolution of civil government, the reason is much stronger why it should amount to a dissolution of a federal government; whose existence is infinitely of less consequence, than the former. Civil society, and civil government its cement and support, may well subsist without the aid of federal government, but they are so intimately blended, with each other, that civil society is in danger, the moment that civil government is exposed to hazard: it may, indeed, survive for a little time; as the pulsations of the heart are known to continue after every other vital function is suspended; but if they be not speedily restored, the whole animal frame perishes together.

Intestine wars are another cause which must necessarily break these unions, unless upon the establishment of peace, the league be also revived. A man must be far gone in Utopian speculations, says the author of the Federalist,+ who can seriously doubt, that if the American States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown, would have frequent and violent contests with each other. And as the prevention of such contests, was among the most cogent reasons to induce the adoption of the union, so ought it to be among the most powerful, to prevent a dissolution of it.

Conquest, where the conqueror happens to possess himself of one or two, or more of the confederate states, is another mode by which these confederacies may be dissolved; for the conqueror in this case, acquires no manner of right over those states that remain, nor can he demand to be admitted into the confederacy, by virtue of the league which engaged the con-

* On civil government. c. 19. + Federalist No. 6.

quered states to the others, for, says Puffendorf*, the alliance must always be presumed to expire, when any one people are brought under a foreign yoke, or are made an accession of another kingdom; because the league being made between free states, considered in that capacity, whenever this condition fails, the league must fail with it. But the American confederacy did not act upon these principles, when the states of Georgia and South Carolina were actually conquered by the British arms, and the British government was re-established in them. The rest of the confederates did not abandon them in this situation, but continued the contest until Great Britain agreed to acknowledge those states, as well as the rest of their confederates, free and independent states. An example which I trust the members of that confederacy will hold in reverence for ever, even, though the guarantee of a republican form of government contained in the present federal constitution should be wholly forgotten.

On the other hand, these systems do more closely unite, and are incorporated into the same civil state, either, if all the confederates, by a voluntary submission, incorporate themselves together, under the entire rule and government of some one person, or council, in all things; as in the union between England and Scotland before mentioned: or if some one state, which hath the advantage of strength and power, reduces the rest to the condition of dependent provinces. And lastly, if some particular man invade the sovereign command, through the favor of the soldiers, the esteem of the commonalty, or the strength of a prevailing faction.+ From which last source more danger may be apprehended to the American Confederacy, than from all the rest.

SECTION XIV.

Having in the preceding section considered the several modes by which a system, or confederacy of states may be dis-

* B. 7. c 5. + Ibid.

solved. I shall add a few words only concerning the dissolution of civil government, which, according to Mr. Locke,* and other writers, may happen either by conquest, and tearing up the roots of society at once, or by the public functionaries who are entrusted with the administration of the government, abusing, or betraying their trusts, and instead of consulting the happiness of the people, endeavouring to establish a model and form of government different from that which they have been entrusted to administer. All which may be summed up in the words of the American declaration of independence, "that whenever any form of government becomes destructive of those ends for which it is instituted, is is the right of the people to alter, or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their happiness and safety. Prudence indeed will dictate that governments long established, should not be changed for light, or transient causes. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

I shall now proceed to offer to the student a view of the constitution of the commonwealth of Virginia, after which I shall go on to consider that of the United States, from which a more correct view will be obtained of the nature of the American governments, in general, than could be given in a general essay upon the nature of the several kinds of government.

* On civil government. c. 19. a work with which every American ought to be perfectly acquainted.

NOTE C.

OF THE CONSTITUTION OF VIRGINIA.

THE constitution of this commonwealth was formed at a time, when the spirit of equality was at its utmost height, and under circumstances which contributed greatly to augment that natural jealousy of executive power, to which all free states are prone, and for which, the convention then saw the most just and cogent reasons. The antient models of republican governments could not be perfectly adapted to the situation, circumstances and extent of the country, nor to the genius of its inhabitants. The peaceable character of an agricultural people did not incline them to adopt the martial institutions of the Roman or Spartan republics: nor did the extent of their country, or the small number of its inhabitants in proportion to that extent, invite or permit them to embrace those of the Athenian or other populous republics of Greece. An habitual predilection for what has been usually stiled the democratic part of the British constitution, prompted an experiment, to graft a scion from that branch of the government of their parent state, upon a pure republican stock: and to ensure it's vigour and success, they carefully lopt off from it every germ of monarchy, and feudal aristocracy. The framers of the constitution were well aware, that the splendour of a government is one thing, and the happiness of the people another;

that if not wholly incompatible, and in direct opposition, they are often in an inverse proportion to each other. The page of history contains but few annals of nations, whose distinguished happiness it has been to enjoy a state of peace. The attention of the historian is not attracted by the calm scenes of peace and tranquillity, in which, only, is real happiness to be found: these are deemed unworthy of recording and transmit-

ting to future ages, whilst scenes of tumult, oppression, bloodshed, and desolation, gratify both the historian and the eager curiosity of his reader, at the expence of millions of victims to ambition, tyranny, treachery, and revenge, too often disguised and even concentrated, under the specious epithet of glory ....

From a just estimate of these things, the convention drew this important conclusion. "That government, is, or ought to be instituted for the common benefit, protection and security of the people; and that form of government is best, which is capable of producing the greatest degree of happiness and safety."* Proceeding upon this maxim as the foundation of that government they were about to establish, they produced a constitution, from which, whatever might tend to gratify the ambition of the governors, was utterly banished, to make room for the more important considerations of the peace, happiness, and security of the people to be governed. They had learned from the history and example of their mother country, that limitations of the executive authority were nugatory, if that authority be united with the legislative, or if the judiciary be subservient to it or united with either. Hence they made this deduction: "That the legislative, executive, and judiciary departments should be separate and distinct, so that neither exercise the powers properly belonging to the other; nor any one exercise more than one of them at the same time."+ The colonial constitution had been particularly defective and exceptionable in this respect. The governor and the members of the colonial council, who were appointed and held their places at the pleasure of the crown, united in their own persons the executive authority of the colony, two branches of the legislature thereof, and the character of judges of the highest court of criminal and civil jurisdiction, both at law and in equity; and moreover in ecclesiastical causes, also: .... a concentration of power capable of producing the utmost extremity of civil oppression and tyranny .... The influence of the executive department in England, over the other branches of the legislature, as well as the subordinate parts of government, and

* Bill of Rights, art. 3. + Constitution of Virginia, art. 3.

the formidable strides and encroachments made by it, under the name of PREROGATIVE, induced them further to declare, "That the governor of this commonwealth shall not, under any pretence, exercise any power or prerogative, by virtue of any law, statute, or custom of England."* But "that he shall, with the advice of the council of state, exercise the executive powers of government according to the laws of the commonwealth."+ This declaration instantly levelled the barriers of distinction between the legislative authority, and that of the executive, rendering the former completely paramount to the latter; except, perhaps, in one or two cases, accidentally specified in the constitution. The want of a proper barrier between the several powers of the government as contemplated in the theory of the constitution, hath left both the executive and judiciary departments, in the opinion of Mr. Jefferson,++ dependant on the legislative for their subsistence in office, and some of them, for their continuance in it. "If, therefore," in his opinion, "the legislative assumes executive and judiciary powers, no opposition is likely to be made; nor if made, can it be effectual; because in that case they may put their proceedings, in the form of an act of assembly, which will render them obligatory on the other branches."¦¦ This, as it relates to the executive department, is practically, and perhaps constitutionally, true. But more than one instance might be adduced where the judiciary department have doubted, or denied the obligation of an act of the legislature, because contrary to the constitution.¦¦¦ Still, however, I am of opinion, with him, that the constitution has not provided those barriers which may be deemed indispensably necessary to prevent the several departments from transcending their legal limits, without being effectually checked and restrained by the others. And, with him, I very cordially lament the omission, and deprecate the ill consequences which at no very remote period may result from it. Those which have already manifested * Constitution of Virginia, art. 9.

+ Ibidem.

++ Notes on Virginia .... 215, Paris edition. ¦¦ Ibidem.

¦¦¦ The case of the district court clerks in the court of appeals. May 12, 1788, and of Kamper vs. Hawkins in the general court, November 16, 1793.

themselves, as arising from that source, some of which he has pointed out, as happening within his own observation and experience*, are of such a magnitude, as to render it a matter of serious enquiry and concern to all who advocate the principle of the separation of the several departments of government, whether we can be safe until the proper barriers are provided .... The abstract terms of legislative, executive and judiciary powers, do not always apply with sufficient precision to enable us to determine to what department any particular case may be most peculiarly appropriate. The legislative power may generally be well enough understood to mean, the power of making, framing and enacting general rules for the government of any community;

the judiciary power, may be understood to mean the power of making the application of those rules to all cases of litigation. But the executive power seems not altogether susceptible of so definite a distinction, as the latter, and as its powers in all the governments of Europe, partake of the legislative character, and are called upon to carry into effect those of the judiciary+ likewise, it might be very difficult to ascertain its constitutional limits, or those of the legislature, with respect to it. In the intercourse with foreign nations, as has been remarked elsewhere, the distinction between such as may be strictly legislative or strictly executive is not altogether obvious. Is a declaration of war, or a treaty of peace, amity or commerce, the province of the one or the other? In England the legislature has nothing to do with these measures: in the federal constitution, the first has been arranged under the legislative department, the second under that of the executive. It required a specific enumeration of the rights and duties of each of these branches of the federal government, to ascertain whose province it is to act in these cases: without such an enumeration, there might have been a perpetual contest between them; and no doubt arguments sufficiently specious and numerous might have been produced in favour of the pretensions of both; and very justly is it remarked by Mr. Jefferson, that the direction of the executive of Virginia during the whole time of the session of the legislature has become habitual and familiar to

* Notes on Virginia, p 214. to 235. Paris edition.

+ The national judges are no more than the mouth that pronounces the words of the law. Mont Sp. of Laws, vol. 1 p. 226.

the latter*. True it is, that the inconveniences of this conduct, in times of profound peace and tranquility, are neither so obvious, nor so numerous or dangerous, as in times of war or difficulty;

but it should be remembered that when such times arrive, there is little leisure for reformation, however requisite. It is also matter of consolation, that even in such times, the powers vested in the federal government, may in a great measure shelter us from the storms to which the very great defects in our state constitution must inevitably have exposed us, but for the many advantageous arrangements which have been made in the constitution of the United States. If by any fatal event the federal union should happen to be dissolved, or broken, there is not a state in the confederacy, that would sooner feel the total inadequacy of its constitution, to support its liberty and independence, as a state, than Virginia.

But however unsuccessful the convention may have been in these respects, of which we have been speaking, the constitution will appear, upon a candid investigation, to be fully commensurate in times of peace, to the security and protection of the citizen from domestic violence or oppression either in his person, or his property. Still, however, we must agree with the enlightened author of the Notes on Virginia, in most of his strictures on its defects, and in a cordial wish that they may be radically cured: and this more especially as the opinion of the same gentleman "that the ordinary legislature may alter the constitution itself,"+ has occasioned a great number of his fellow-citizens to doubt the validity of that constitution under which they live. An opinion, however, in which the author of these pages cannot concur, for reasons which he has more than once been constrained publicly to deliver, on the most solemn occasions; some of which he will take the liberty of repeating in this place.

Not only the colony of Virginia, but the whole American continent had witnessed, for a series of years, the rapid strides of usurpation and oppression on the part of Great Britain, when the commencement of hostilities on the nineteenth of April, and

* Notes on Virginia, p 215. + Ibidem, p. 217.

their repetition on the 17th of June, 1775, left no possible doubt of the full determination of the government of that nation to reduce the American colonies to unconditional obedience, by the sword. The governor of this colony had withdrawn himself from the seat of government, and was preparing to commence the like scenes here, when the American congress on the sixth of July in the same year, published to the world a declaration, setting forth the causes and necessity of their taking up arms; in which they declared, "that exerting the utmost energy of those powers, which their beneficent creator had graciously bestowed upon them, the arms which they had been by their enemies compelled to assume, they would in defiance of every hazard, with unabating firmness and perseverance, employ for the preservation of their liberties; being with one mind resolved to die freemen rather than to live slaves."

True it is that in this declaration they disavowed any design of separating from Great Britain, and establishing independent states. But the decided tone of that declaration, and the no less determined conduct and resolutions of the British government, seconded by repeated aggressions in every part of the colonies, and by an act of parliament and royal proclamation declaring the colonies in a state of rebellion, authorizing the seizure of the persons and property of their inhabitants, and putting them out of the king's protection, left no room to doubt that the appeal to arms thus made on both sides, must very shortly drive the colonies to submission or a declaration of independence. Every one regarded the former of these alternatives with disdain; and long before the approach of the period for electing members to the succeeding convention to be held in May, all hope of reconciliation was swallowed up in the torrents of blood, which had already flowed on both sides: formidable preparations were making on both sides for a vigorous prosecution of the war, and the most awful denunciations were continually repeated on the part of our enraged enemies: anxiety and apprehension invaded every breast; every public assembly, every religious congregation, every scene of social intercourse or of domestic privacy and retirement was a scene of deliberation on the public calamity, and impending danger. The question of independence was dis

cussed In the public newspapers and at every public meeting;

and the sense of their respective constituents must have been generally known to the members of the convention, before the period of assembling. Instructions to them were in many instances published in the newspapers, containing an explicit declaration of the wishes of the people, that independence, their last hope and refuge should be immediately declared. The public mind, if we may judge from all these circumstances, was fully prepared for the important event that was approaching ....

Former conventions were appointed not for any special purpose but "to adopt such modes of consulting and providing for the general safety as might seem most conducive to that great end;"* that which met in May, 1776, might be considered as already instructed in the course they were to pursue.+ Few wished and none expected that our subordination to the crown of Great Britain could exist any longer than was absolutely necessary to collect the sense of the people upon the subject; and the unanimous vote of the convention upon the question at so early a period of the session, proves beyond all doubt, that the members must have left their respective counties fully prepared to give the assent of their constituents to a final separation from their mother country. But a power to demolish the fabric of government then existing, without authority to erect a new one could not be presumed. Though the chains of dependence must be broken, the bonds of society and civil government must yet be preserved; and a new organization of the powers of government, must instantly take place to prevent those evils which the absence of government must inevitably produce. If the wants and fears of individuals be the first and most cogent motives which impel men to form civil government, never was * Ordinance of convention, July 1775, c. 4.

+ Mr. Jefferson, I apprehend, is mistaken in supposing that in April, 1776, independence and the establishment of a new form of government had not been opened to the mass of the people. The idea was frequently suggested in the public newspapers, even as far back as November 10, 1775, as soon as Lord Dunmore published the king's proclamation declaring the colonies in rebellion; and his own, calling upon the people to repair to the royal standard, or to be looked upon as traitors, and dealt with according to the rules of martial law;

and inviting the negroes to join his majesty's troops for the reduction of the colony to a state of obedience.

there an occasion when those motives could have a more powerful operation; since the moment of disunion would certainty be the moment of destruction. It would therefore have been absurdity in the extreme, in the convention, to suppose it to be the sense of their constituents, that they might cast off their dependence upon Great Britain, and annihilate the government exercised under its authority, without establishing another in its stead; thus leaving the people wholly without government, at the moment when the utmost exertions of a regular and well organized government, were required for the preservation, not of their liberties only, but their lives also, from the hand of the executioner. The constitution of the state must therefore, be considered as the act of the people, equally as the dissolution of the former government; both being not only in form, but in effect, from the nature and necessity of the case, one and the same act. To question the validity of the one is to deny that of the other; the powers necessary to both being the same, and the one a consequence unavoidably and indispensibly flowing from the other.

But this subject deserves to be considered in another light:

it will be remembered by all who are conversant with the use and progress of the late glorious revolution; that the measures which led to its final consummation; and which for the most part originated in the legal and constitutional assemblies of the several colonies, made but a small progress in those channels, particularly in this state. The dissolution of the constitutional assemblies by the governors appointed by the crown, obliged the people to resort to other modes of deliberating for the common good. Hence the first introduction of conventions; bodies neither authorsed by nor known to the constitutional government;

bodies, on the contrary, which the officers of the constitutional go-governments considered as altogether illegal, and wanted not the inclination to treat as such. Nevertheless, they met, deliberated, and resolved, for the common good. They were the people assembled by their deputies, not a legal, or constitutional assembly or part of the government as then organized. Hence they were not, nor could they be deemed the ordinary legislature; that body being composed of the governor, appointed by

the crown, the council, appointed in the same manner, and the burgesses chosen by the people, sitting in different chambers, in different characters, and under different authorities; whilst the convention was composed of a single body, having neither the character of a governor, council, or even a legitimate representative among them. It consisted of the people themselves assembled by their delegates, to whom the care of the common weal was unboundedly confided. The ordinance under which the last convention was chosen*, declaring, "That by the unhappy differences subsisting between Great Britain and this colony, the usual meetings of the general assembly, deliberations on the situation of the country, and making provision for the exigencies of government in a constitutional way, are altogether obstructed; for which reason it has become indispensably necessary for the oppressed people of this country, at a crisis so alarming, to adopt such other mode of consulting and providing for the general safety as may seem most conducive to that great end." This is the voice of the people looking forward to scenes of danger, and to a crisis pregnant with the fate of their country. THE SAFETY OF THE PEOPLE, the supreme law of nations and of society, was thus confided without bounds or limits, to the wisdom, patriotism and integrity of the convention.

The distinction between the convention and the ordinary legislature, may be still further proved, from the different manner in which they were assembled. The power of convening the legal assemblies, on the ordinary and constitutional legislature of the colony resided wholly in the executive. The members of the legislature could neither be chosen, without writs issued by its authority, nor assemble when chosen, but in obedience to a summons from the same authority. They might be prorogued, or dissolved, at the pleasure of the representative of the crown, who possessed a negative upon all their proceedings. Conventions, on the contrary, were chosen and assembled either in pursuance of recommendations from their own body, or from the congress, or by the discretion and common consent of the people. It was equally beyond the power of the constitu-* July, 1775, c. 4. Chancellor's Revisal, 1785, p. 30.

tional executive to dissolve them, as it was against his interest or inclination to convene them. They were held even whilst a legal assembly existed. Witness the convention held in Richmond in March, 1775, after which period the constitutional assembly was convened by Lord Dunmore, and met and continued their session several weeks in Williamsburgh. This assembly adjourned to some day in the following October; from thence to some day in March; and then to the sixth day of May, 1776, when forty five members being a quorum of the house to proceed to business, met pursuant to their last adjournment: "But it being their opinion, that the people could not now be legally represented according to the ancient constitution which had been subvened by the king, lords, and commons of Great Britain, and consequently dissolved, they unanimously dissolved themselves accordingly*." No other legal assembly was ever afterwards chosen or convened under the authority of the British government.

The convention then was not the ordinary legislature of Virginia: nor could it be regarded in that light; for two ordinary legislatures existing in the same state, at the same time, with equal or concurrent powers, is a phenomenon which it is believed the people of this country never intended to exhibit. The convention was either nothing at all, or something superior to an ordinary legislature. It was the great body of the people assembled in the persons of their deputies, to consult for the common good, and to act IN ALL THINGS FOR THE SAFETY OF

THE PEOPLE.

This venerable body assembled in Williamsburg, on the first Monday in May, 1776. The president, in an address from the chair, observed, "that they were assembled at a time truly critical, when subjects of the most important and interesting nature, required their serious attention. That the administration of justice and almost all the powers of government had been suspended for near two years, and that it became them to reflect whether we could longer sustain the great struggle we were making in that situation."

* Virginia (official) Gazette, printed by A. Purdie, May 10, 1776.

On the 15th day of May, (a day ever to be remembered in Virginia), the convention made the following solemn declaration, and came to several resolutions thereupon:

"Forasmuch as all the endeavours of the united colonies, by the most decent representations and petitions to the king and parliament of Great Britain to restore peace and security to America under the British government and a re-union with that people upon just and liberal terms, instead of a redress of grievances, have produced, from an imperious and vindictive administration, increased insult, oppression, and a vigorous attempt to affect our total destruction. By a late act of parliament all the colonies are declared to be in rebellion, and out of the protection of the British crown, our properties are subjected to confiscation, our people when captivated, compelled to join in the murder and plunder of their relations, and countrymen, and all former rapines and oppression of Americans declared legal and just; fleets and armies are raised, and the aid of foreign troops engaged to assist their destructive purposes. The kings representative in this colony, hath not only withheld the powers of government from operating for our safety, but having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves by every artifice to resort to him, and training and employing them against their masters. In this state of extreme danger we have no alternative left, but abject submission to the will of those overbearing tyrants, or a TOTAL SEPARATION, from the crown and government of Great Britain, uniting and exerting the strength of all America for defence and forming alliances with foreign powers for commerce and aid in war. Wherefore, appealing to the searcher of hearts for the sincerity of former declarations, expressing our desire to preserve the connexion with that nation, and that we are driven from that inclination by their wicked councils and the eternal laws of self-preservation;

"Resolved unanimously; that the delegates appointed to represent this colony in general congress, be instructed to propose to that respectable body to declare the united colonies,

free and independent states, absolved from all allegiance to, or dependence upon the crown or parliament of Great Britain:

and that they give the assent of this colony to such declaration and to whatever measures may be thought proper and necessary by congress, for forming foreign alliance, and a confederacy of the colonies at such time and in such manner, as to them shall seem best; provided that the power of forming governments for, and the regulations of the internal concerns of each colony, be left to the respective colonial legislatures.

"Resolved unanimously; that a committee be appointed to prepare a declaration of rights, and such a plan of government as will be most likely to maintain peace and order in this colony, and secure substantial and equal liberty to the people*."

A committee was thereupon immediately appointed, consisting of twenty-eight members, by which draughts were accordingly prepared, reported and discussed by the convention. The bill of rights passed on the twelfth of June, and the constitution UNANIMOUSLY on the 29th, of the same month. A governor for the commonwealth, and the members of the privy council were appointed on the same day, pursuant to the provisions made in the last article of the constitution. On the fifth day of July, (the day after the declaration of independence was agreed to, in the general congress at Philadelphia) the governor and members of the privy council took their respective oaths of office, as prescribed by an ordinance passed on the fourth day of the same month, and then the convention adjourned; leaving the government of the commonwealth of Virginia, as an independent state, completely organized, as such.+

* It is worthy of remark, that on the very same day, the congress then sitting in Philadelphia, came to a resolution "recommending to the respective assemblies and conventions of the united colonies, where no government sufficient to the exigencies of their affairs had been theretofore established, to adopt such government, as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents, in particular, and America in general. Journals of Congress, May 15, 1776."

+ Journal of the Convention. Few copies of this important document are now to be met with; I have therefore been more copious than otherwise I should have been, in the extracts, I have made from the copy in my possession.

From these circumstances, it must be evident that the constitution of Virginia, was neither the momentary production of Violent or of factious men, but the result of more than six weeks deliberate consultation, and consideration, among men well informed of the sentiments and wishes of their respective constituents. It may be regarded as the unanimous voice of the people, proclaiming to the world their resolution to be free; and to institute such a government, as in their opinion was most likely to produce peace, happiness, and safety, both to the community and to the individual. "The revolution of 1688, says Judge Blackstone*, was not a defeazance of the succession and a new limitation of the crown, by the king and two houses of parliament; it was the act of the nation alone, upon a conviction that there was no king in being.'' And the ingenious Mackintosh remarks, "that the national assembly of France was assembled as an ordinary legislature under existing laws. They were transformed by events into a national convention, and vested with power to organize a new government. It is in vain to demand the legal instrument that changed their constitution and extended their powers. Great revolutions are too immense for technical formality. All the sanction that can be hoped from such events, is the voice of the people, however informally and irregularly expressed."+ Our case was much stronger than either of those mentioned by these writers. The convention parliament assembled in England in 1688, bore some resemblance, at least, to the ordinary legislature of that kingdom:

and the national assembly of France was constitutionally assembled under the authority of the government which it subverted. The convention of Virginia, had not the shadow of a legal, or, constitutional form about it. It derived its existence and authority from a higher source; a power which can supersede all law, dispense with all forms; and whenever it pleases annul one constitution; and set up another; namely the people in their sovereign, unlimited and unlimitable authority and capacity.

If any arguments were necessary to prove, that the convention were fully satisfied, that they complied with the wishes and

* Vol. 1. 211.

+ Defence of the French revolution. p. 60.

intentions of their constituents, and that this was in fact the case, we need only advert to the circumstance of their unaminous vote given for a separation and the establishment of a new form of government, after a debate of two days, only, on the eighth day of their session; and a similar vote given six weeks after, upon the question whether the present constitution should pass. If the people had not approved of the measure, would not addresses or instructions have been poured in upon the convention from all parts of the colony? Most assuredly they would. The unanimous vote in favour of the constitution is the most unequivocal proof that the people not only saw and approved what was doing, but had, however informally, made known their sentiments to their deputies before they left their respective counties. That the convention intended not a mere temporary form of government, but one as permanent as the republic they were engaged in establishing, may be collected from several parts of the instrument itself, but more especially from the twenty-first article, in the following words: "The territories contained within the charters erecting the colonies of Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released, and forever confirmed to the people of those colonies, respectively, with all the rights of property, jurisdiction and government and all other rights whatsoever which might at any time heretofore have been claimed by Virginia, except the free navigation and use of the rivers Potomac and Pohomoke, with the property of the Virginia shores or strands, bordering on either of the said rivers, and all improvements which have been or shall be made thereon. The western and northern extent of Virginia shall, in all other respects, stand as fixed by the charter of king James the first, in the year 1609, and by the public treaty of peace between the courts of Great-Britain and France in the year 1763, unless by the act of the legislature one or more territories shall hereafter be laid off, and GOVERNMENTS ESTABLISHED westward of the Alleganey mountains."

To what I have said, I shall subjoin a part of the argument of Judge Wilson, as delivered upon this question in the general court, November 16,1793, in the case of Kamper against Hawkins.

"A constitution is that by which the powers of government are limited. It is to the governor, or rather to the departments of government, what a law is to individuals .... nay it is not only a rule of action to the branches of government, but it is that from which their existence flows, and by which their powers (or portions of the right to govern) which may have been committed to them are prescribed. It is their commission .... nay it is their creator.

"The present question is, whether an act of the legislature contrary to it be valid.

"This is the paper* by which the delegates and representatives of the people, viewing with concern the deplorable situation to which this country must have been reduced, unless some regular, adequate mode of civil polity had been speedily adopted, did ordain and declare the future form of government to be as there set forth.

"This is the paper which divides the government into three distinct departments, with one exception.

"This is the very paper under which there are two branches of legislature now assembled.

"This is the very paper under which they are to meet once a year, or oftener.

"This is the very paper which gives them the stile of the GENERAL ASSEMBLY of VIRGINIA.

"This is the very paper that calls one the house of delegates, and the other the senate.

"This is the very paper which declares that the former shall consist of two representatives from each county, chosen by the freeholders; which fixes the number of the senators to twenty-four; which defines the number which shall compose a house

* See the second section of the constitution.

of senate, under which the state is to be divided into twenty-four districts; which declares that each county shall vote for a senator, who, besides other qualifications, shall be twenty-five years of age; that a comparison of the polls shall be made by the sheriffs, who are to return the person having the greatest number of votes; that a certain number are to be displaced in rotation;

that writs may issue from each house for supplying vacancies;

and,

"That all laws shall originate in the house of delegates, subject to amendment by the senate, except money bills.

"I ask then, whether the legislature do not sit under this constitution?

"The answer in the affirmative, to me is inevitable.

"But it may be objected, that although the legislature would be bound by a fundamental regulation, made by a convention or other body, delegated expressly for such a purpose, the body who formed this, not having been thus specially appointed, this act possesses not sufficient sanctity, but is an act, equal only to those of the ordinary legislature, because some acts passed in the same session are confessedly so.

"Here let it be remembered, that the question is not whether the people can change it; but whether the legislature can do so?

"The people have received this as a constitution. The magistrates and officers, down to a constable, (for even the mode of his appointment is directed therein) have been appointed under it.

"The people have felt it's operation and acquiesced: it is confessedly their assent which gives validity to a constitution.

"Who then can change it? "I answer .... the people alone.

"But it has been supposed that the legislature can do this.

"To decide this question, I have already stated that the legislature derive their existence from the constitution.

"And can the legislature impugn that character, under which they claim to be a legislature? I apprehend not*."

To my understanding and judgment nothing can be more conclusive than this argument. I shall therefore here conclude the subject, with this remark; that both the judiciary and the legislature have on several occasions recognized the authority of the constitution as such, on, several solemn occasions:+ therefore, until it shall be altered in some authoritative and constitutional way, we are bound to respect it, as the immediate act of the people, and as such obligatory not only upon the other branches of the government, but upon the legislature also. Quitting therefore the unpleasant theme of inquiring into unfounded encroachments of one of the departments of government upon the other, I shall now proceed to some examination of their several constitutions, rights and duties.

I. The legislative department consists of two distinct branches; the house of delegates and the senate; these together constitute the general assembly of Virginia, without any admixture of the consent or assent of the executive, as before the revolution, to any of their acts.

* Report of the case of Kamper vs. Hawkins, in the General Court. + That the legislature of the commonwealth, have regarded the constitution as obligatory upon them, will appear from the preamble of an act passed in May session 1783, c 33. Revisal of 1785, p. 204, assigning as a reason for repealing a former act, that it was found to be contrary to the constitution or form of government. A second instance occurs in the acts of 1787, c. 93. which assigns the same reason for a repeal of a former law, 1783, c. 81. The repeal of the first law establishing district courts, 1787, c. 39. was a tacit acknowledgment of the same principle as contended for by the court of appeals in their remonstrance of May 12, 1783. Other instances doubtless might be adduced. It seems now settled in all the superior courts, that whenever "the constitution and an act of the legislature are in opposition, and cannot exist together, the former must control the latter." Remonstrance of the court of appeals to the general assembly, May 12, 1788.

1. The house of delegates consists of two representatives, chosen for each county, annually, of such men as actually reside in and are freeholders of the same, or duly qualified according to law; and one representative for the city of Williamsburg, and one for the borough of Norfolk, and a representative for each of such other cities and boroughs as may be allowed particular representation by the legislature; but when a city or borough shall so decrease as that the number of persons having the right of suffrage shall, for seven years successively, be less than half the number of votes in some one county, it shall thenceforth cease to send a representative to the assembly*.

The right of suffrage, in the election of members of both houses, is to remain as then exercised,+ art. 7. This clause has occasioned some doubt, and probably a violation of the constitution. The ordinance of July, 1775, c. 4. under which the members of the convention were chosen, and to which they probably meant to refer, declares, that the freeholders of every county, who are by law properly qualified to vote for burgesses, shall have the privilege of chusing annually two of the most fit and able men being freeholders of such county respectively; and the freeholders of the several and respective corporations, and town of James City, and others by law qualified to vote for a citizen or burgess, shall have the liberty of electing one delegate; and the landholders of the district of West Augusta shall be considered as a distinct county, and have the liberty of sending two delegates to represent them in general convention. And inasmuch as the inhabitants of the county of Fincastle, and district of West Augusta, although long possessed of their lands under surveys, entries, or orders of council, have few of them obtained patents

* C. V. art. 5. There are now (1802) ninety-two counties. The city of Richmond was allowed to have a representative by the act of 1788, c. 63. The elections are now held on the same day in every county, viz. on the fourth Wednesday in April yearly. L. V. 1788, c. 14.

+ The bill of rights, art. 6. gives us the following principle in regard to the right of suffrage: "that all men having sufficient evidence of permanent common interest with, and attachment to the community, have the right of suffrage, &c. How far the constitution may have conformed to this principle in fixing the right of suffrage as then exercised, has been a matter of much dispute and controversy, of late.

for the same which have been obstructed without any default in them: it is further ordained that every free white man, who at the time of elections for delegates in the said county or district, shall have been for one year preceding, in possession of twenty-five acres of land, with a house or plantation thereon, or one hundred acres of land, without a house or plantation, in such county or district, claiming an estate for life at least in his own right, or in right of his wife, shall have a vote, or be capable of being chosen a delegate, although no legal title in the land shall have been conveyed to such possessor: and that no person shall be permitted to vote at any election who is not qualified so to do*.

As this ordinance confines the right of suffrage to such persons as were by law qualified to vote for burgesses, we must consult the laws then in force to ascertain and determine this right.

The act of 1705, c. 1. §. 1. and 6. declares that the freeholders of every county that then was, or thereafter should be in Virginia, shall forever have the privilege and liberty of electing two of the most fit and able men of their county, respectively, to represent them in the general assembly; and that every person having an estate real for his own life or the life of another, shall be accounted a freeholder within the meaning of that act. And by the act of 1723. c. 4. §. 23. (Edi. 1733), It is enacted and declared that no free negroe, mulattoe, or Indian whatsoever, shall thereafter have any vote at the election of burgesses, or any other election whatsoever.

The act of 1735. c. 1. after reciting, that divers frauds had of late been practised to create and multiply votes, by making leases of small and inconsiderable parcels of land, upon feigned considerations, and by sub-dividing lots of ground in towns in prejudice of the rights of true freeholders, declares that no person whatsoever shall thereafter have a right to vote at any election for any county, who hath not an estate of freehold, or other greater estate, in one hundred acres of land, at least, if no settlement be made upon it, or twenty-five acres, with a house or plantation in his possession or in the possession of his tenant for years, in the same county: but if any person shall have such an estate in

* See V. L. Edi. 1785, p. 30.

one hundred acres of land uninhabited, lying in two or more counties, he shall have the right to vote in that county only where the greater quantity may lie, although the same do not amount to one hundred acres, in either county: And that all estates and conveyances whatsoever, made to any person in any fraudulent or collusive manner, on purpose to qualify him to vote, shall be null and void to all intents and purposes whatsoever; and every person making or executing, devising or preparing such conveyance; or by colour thereof, voting at any election, is subject to a penalty of forty pounds: .... And that no person shall vote at

any election in respect, or in right of any lands or tenements whereof he hath not been in possession one whole year, next before the teste of the writ for such election, unless the same came to him within that time, by descent, marriage, marriage settlement, or devise: .... But that nothing in that act should be construed to hinder any person to vote at such elections, in right of any houses, lands, or tenements in any city or town laid out and established by act of assembly, so as such person be a freeholder in any house and lot, or a house and part of a lot: but where the interest in any such house and lot or part of a lot is divided among several persons, no more than one single voice shall be admitted for the same .... And where lands are held by several

joint-tenants or tenants in common, no more than one single voice shall be admitted in right thereof, unless the quantity be sufficient to allot to each, one hundred acres at least; if the same be uninhabited, or twenty-five acres with a house and plantation thereon: and the person offering to vote, if required, must swear to his qualification accordingly before he is admitted to poll.

The qualifications of electors for a burgess for the city of Williamsburg as fixed by its charter, and by the act of 1742, ch. 2,* are, that the voter shall have an estate of freehold in one whole lot of land within the said city; and that there be standing upon the same a house of such dimensions as is required by law for saving such lot, in tenantable repair, at the time of giving the vote; that in case of joint-tenants, &c. no more than one vote shall be given: or such voter must have a visible estate of fifty pounds current money, at the least, and have actually resided

* Edi. 1769. p. 122.

therein, twelve months next before the election, or have served five years as an apprentice to some trade within the city, have obtained a certificate thereof from the court of hustings; and also be an inhabitant and house-keeper therein at the time of giving his vote: and no servant by indenture or otherwise shall be allowed to give any vote in right of being an inhabitant. The qualifications of voters in the borough of Norfolk, as fixed also by its charter, and by the act of 1752, c. 7. are the same in all respects, except that a freehold estate in half a lot of land, with a house thereon of like dimensions, is declared a sufficient qualification.*

Upon this footing did the right of suffrage stand at the time of establishing the constitution, and upon this footing, I presume, it ought now to stand. The act of 1769, c. 1. by which it was intended to reduce the qualifications of electors in right of unsettled lands to fifty acres, instead of one hundred; and the possession thereof, to avoid the presumption of fraud, to six months instead of one year, was suspended by a clause thereof, until the royal assent should be obtained:+ but it never was obtained, so that we may be authorized in presuming that the several antecedent acts before mentioned, were in full force when the constitution was adopted. Whether from oversight or intention the act of 1785. c. 55. (Edi. 1794. c. 17,) pursues the act of 1769. c. 1. in both respects, so that it seems worthy of the attention and enquiry of the legislature, whether the elections of members to the general assembly, may not be authorised and conducted in a manner contrary to the constitution.

The author of the Notes on Virginia observes "that a majority of the men in the state, who pay and fight for its support are unrepresented in the legislature, the roll of freeholders entitled to vote not including generally the half of those on the militia or of the taxgatherers."++ I am strongly inclined to doubt the justice of this conjecture, for such I presume it to be, as no accurate comparison can probably be made, between the number

* Edi. 1769. p. 287.

+ See V. L. Edi. 1785, p. 3.

++ Notes on Virginia, p. 211.

of freeholders, and of those upon the rolls of the militia, or the tax-gatherers' books. Except on some great occasion where a contest may happen, between influential persons, the whole body of freeholders in a county, rarely, perhaps, never, attend. The returns are not made to the clerk of the house of delegates so as to enable one readily to ascertain their number. Free negroes and mulattoes are excluded from elections; they are now excluded from the militia rolls, and very few of their names appear upon the tax-gatherers' books. The adult sons of freeholders who are still under the age of twenty-one years, are indeed subject to be called upon in the militia, but their names appear not upon the tax-gatherers' books .... The overseers and managers upon the plantations of more opulent persons, were formerly excluded from the militia: now indeed they are liable to be called upon for that service; but their numbers of late years have greatly diminished, and not a few of them are men who possess freeholds of their own. Tenants for years, or at will, are rarely to be met with, except within the precincts of the Northern Neck; and even there, those who occupy rented lands, have generally leases for term of lives, instead of years. Very few persons over the age of twenty-one years, remain long unmarried in Virginia; and the acquisition of a wife is ordinarily attended with that of a farm, sufficient to entitle the owner to a vote. In the western part of the state, overseers are almost unknown, and even below the Blue Ridge, there are probably ten farmers that manage their own estates for one that employs an overseer. I am therefore entirely at a loss to conjecture upon what grounds the author founds his opinion. His next objection is more easily understood.

"Among those who share the representation, the shares arc very unequal. Thus the county of Warwick with only one hundred fighting men, has an equal representation with the county of Loudon, which has 1746, so that every man in Warwick has as much influence in the government as seventeen men in Loudon." Warwick, however, pays four hundred and eleven dollars, yearly, into the treasury, whilst the counties of Monongalia, Harrison, Randolph, and Lee, pay four hundred and one dollars and twenty-six cents only to the public revenue. If Lou

don should complain of the undue influence of the number of men in Warwick, these counties, at least cannot complain of its exemption from taxes, since they have four times as many representatives, and pay less into the treasury than Warwick, or even than the little depopulated city of Williamsburg*. There is not then such a disparity between benefits and burdens, in the different parts of the state, perhaps, as might at first have been conjectured from the instance produced; nor does that disparity arise so much from the excess of representation, in the counties lying between the sea-coast and the falls of the rivers, as in the excess in the counties in the western part of the state.

The fairest way of adjusting the proportions of benefits and burdens in the state, seems to be by combining pecuniary ability and burdens with such as are merely personal. In a peaceable commonwealth, pecuniary burdens are likely to be the greatest. In time of peace there are no personal burdens beyond the ordinary repairs of roads or other trifling labour; the whole burden of government is altogether pecuniary. In time of war personal duties arc required; but pecuniary burdens must increase as they increase, and often be continued after they cease. Witness the debt contracted during the revolutionary war, which we are still paying after twenty years of peace, and may continue to pay for a century, or perhaps forever. Besides, if they who pay nothing, or very little, are entrusted with the imposition of burdens, of which they are to feel no part, there is too much reason, from the experience of all ages and countries, to apprehend that they may be regardless of the burden they impose; especially if the question should relate to the compensation to be made to themselves, or their own immediate constituents, similarly circumstanced for their personal services. A scale of representation adjusted according to the number of fighting men, only, (the idea which suggests itself from the view of Mr. Jef-

* State of the taxes arising on land, negroes, and other property in Virginia for the year 1794, annexed to the letter from the secretary of the treasury to the speaker of the house of representatives in congress, December 19, 1796, accompanying a plan for laying and collecting direct taxes.

ferson's table)* would, probably be one of the most exceptionable that could be adopted; since in peace they would be exempted from all burdens, whatsoever, and in war, might throw the burden both of men and money, upon the weaker part, of the state, which must consequently have the minority in the public councils. Is it not from a consciousness of the justice of this principle, that Virginia with all her sister states in the southern part of the union, have insisted, and obtained, that their representation should not be fixed in proportion to the fighting men in the union, (which would have enabled the northern states to give law to the confederacy,) but according to a census differing very widely from such a scale of representation? and if the principle be sound in the one case, what is it that renders it less so, in the other?

Since the period when the notes on Virginia were written the act for equalizing the land tax, (Oct. 1782, c. 19. edi. 1785, p. 177,) in the several parts of the state was passed, and carried into effect; and is now the invariable standard by which the landholders in different parts of the state are taxed. The counties of Brunswick, Amelia, Cumberland, Goochland, Hanover, Spottsylvania, Stafford, Prince William, and Fairfax, and all the counties eastward thereof, compose the first class, and the lands therein are rated at a general average often shillings per acre: the counties westward of these and below the blue ridge of mountains (except Pittsylvania and Henry,) together with the rich and fertile counties of Frederick, Berkeley, and Jefferson, compose the second class, and the lands therein are rated at a general average of seven shillings and sixpence per acre, only, although the lands in that class in general, are confessedly superior to those, in general, in the first. The counties of Pittsylvania, Henry, Patrick, Franklin, Botetourt, Rockbridge, Augusta, Rockingham, Shenandoah, Hardy and Hampshire, compose the third class, and the lands therein are rated at a general average

* Notes on Virginia, p 212. Paris edi. It is much to be wished that the enlightened author would favour his country with a second edition, as many documents might at this time be procured, which had no existence at the time he wrote.

of five shillings and sixpence per acre; the counties westward of these, now amounting to eighteen in number, compose the fourth class, and the lands therein, are rated at a general average of three shillings per acre. Whenever, therefore, a landholder in the western parts of the state pays three shillings, or one nearer the centre pays five shillings and sixpence, or seven shillings and sixpence land tax, the landholder in the first class pays ten shillings, for the same quantity of land; this class moreover pays near three fifths of the slave tax; an inspection of the following table will shew the number of counties in each class ....

Paying an equal land tax, the counties in each class, respectively, may be considered as having so far a common interest; those which have few or no slaves among them, and those which have a great many, may likewise be supposed to have a common interest with each other, according as either of these circumstances preponderate. The number of slaves in the third and fourth classes were no more than 21,738, when the last census was taken, whilst those in the first and second classes amounted to 324,058. Lands and slaves have ever been the subjects of the productive revenues of the state, and will probably so remain ....

In the first class there were 196,542 slaves, at the time of the first census: the number by the late census appears to be 213,075. This proportion of the state must therefore always sustain the great load of pecuniary burdens imposed in the state. An inspection of the following table, formed from authentic documents,* will shew where the inequality of representation in the state legislature really falls at this day. The counties are divided into classes, according to the act for equalizing the land tax;

first class paying ten shillings per acre land tax when the second pays seven shillings and sixpence; the third five shillings and sixpence, and the fourth three shillings, as before mentioned.

* The number of white males between sixteen and forty-five, in this table, and that of slaves, are taken from the census made in the year 1801 The taxes are taken from the report of the secretary of the treasury of the United States to Congress, Dec. 19,1796, before referred to, page 403. The number of counties and representatives, from the acts of our assembly.

CLASSES.	Number of counties	Actual number of delegates.	Free white males between sixteen and forty-five years.	Total taxes paid in 1794, in Dollars	Slaves	PROPORTlONS; IFA SCALE OF REPRESENTATION BE MADE.
						By fighting men only.	By taxes only.	By a combination of both
1st Class.	43	89	37,619	74,520	213,075	71	107	89
2d Class.	20	40	31,601	39,020	110,983	60	56	58
3d Class.	11	22	15,544	11,622	15,406	30	17	231-2
4th Class.	18	36	13,845	4,635	6,332	26	7	161-2
TOTAL.	92	187	98,609	129797	345,796	187	187	187

From this table it appears, that if it be admitted that a proportion combined of the personal and pecuniary burdens borne by the several parts of the state, be considered as the proper and just scale of representation, the first class has numerically its proper number at present, whilst the fourth class has more than double its proper proportion; the second class by such an arrangement would gain nearly half as many more than it now has;

and the third class one member, if the fraction be given to the fourth class; or two, if the fraction be given to the third*.

* The difficulty of establishing a proportion of representation combined of the personal and pecuniary ability, or burden borne in the several parts of the state, is probably less than those who have not turned their attention to the subject may conceive; the author of these pages natters himself that it will not be thought arrogant in him to suggest one, which to him appears founded upon the most just principles, and admitting of being reduced into practice without difficulty.

1. Let the several counties in the commonwealth be arranged into districts for chusing representatives to congress, as nearly as possible, according to the census by which representatives to congress are to be apportioned among the several states.

2. Let each district be entitled to chuse two senators in the manner hereafter mentioned; but in chusing senators for that district, in which the counties of Accomack and Northampton may be, let one senator be chosen who is a resident on the eastern shore, and one who is a resident on the western shore.

3. Let each district be likewise entitled to chuse as many members of the house of delegates, as their several proportions of the whole number of militia

Since an inequality in the representation actually exists, it is Very fortunate that it falls upon so large a portion of the middle part of the state; the weight of that portion is sufficient on any occasion, where local and party contests may prevail between

(or free white males over the age of sixteen, and not more than five and forty years of age); and of the whole amount of taxes paid into the treasury of the commonwealth, annually, from the several counties in each district respectively, according to the following rate thereof, respectively; that is to say,

1. Let the whole number of militia, (according to the before-mentioned description,) who may be found within the state by the last census of the United States, preceding such arrangement, be divided by the whole number of districts for chusing members to congress; and let there be four members of the house of delegates, throughout the state, for the number of militia which the quotient may amount to; that is to say, one member of the house of delegates, for any number of militia equal to a fourth part of such quotient; two members for any number of militia equal to one-half of such quotient, and so on, in the same proportion, to be chosen in the several districts before mentioned, in proportion to the number of the militia in each district respectively, in the manner herein after mentioned.

2. Let the aggregate of taxes paid into the treasury of the commonwealth, annually, upon an average of the ten preceding years, be in like manner divided by the whole number of districts for chusing members to congress, and let there be four members of the house of delegates throughout the state, for every sum in dollars which the quotient may amount to: that is to say, one member of the house of delegates for any number or sum in dollars equal to a fourth part of such quotient, and so on in the same proportion to be chosen in the several districts, in proportion to the taxes paid by the several counties therein, to the state, upon a like average of ten preceding years.

3. Let the fractions of militia and of taxes, amounting to less than the fourth part of an unit in any district, be added together, and if their aggregate number shall amount to one-eighth part of the general quotient of militia, and of taxes, (as above mentioned) added together, let every such district be entitled to chuse one additional number of the house of delegates for the same*.

4. The number of delegates which each district throughout the state may be entitled to chuse, being thus ascertained, let each county in the several districts respectively, chuse one person, residing within the same, to be a mem-

* To ascertain the whole number of delegates which any district may be entitled to chuse, according to this plan, add the quotients if militia and of taxes together, and divide the aggregate number by eight. The quotient will afford the proper division, by which to divide the aggregate number if militia and of taxes, in any district: this last quotient will be the number sought.

the representatives from the eastern and western extremes, to turn the scale against either which may shew a disposition to injure or oppress the other.

Here, I must beg leave to make a short digression, upon the subject of the last arrangement of the counties into districts to chuse representatives to congress. As congress possesses the power of taxation even more extensively than the state legisla-

ber of the house of delegates for such county, in the same manner as at present. And if the number of delegates which any district may be entitled to chuse, shall exceed the number of counties therein, let any city or borough within such district, which may by the present constitution, or by law, be entitled to chuse a member of the house of delegates, be likewise entitled to chuse a member thereof as at present. And let the remainder of the members of the house of delegates be chosen by the districts, respectively, at large, in the same manner as senators are now chosen; but let no person be chosen as a delegate from any county or district, unless he shall actually have resided within the same twelve months, at least, before his election.

This plan of representation would give forty-four members to the senate, and one hundred and seventy-six members (including fractious) to the house of delegates. The district composed of the counties of Berkeley, Jefferson, and Hampshire, would be entitled to five delegates; that of Frederick and Shenandoah to eight; that of Loudon, Fairfax, and Prince William, to nine; that of Fauquier and Culpeper to seven, that of King and Queen, King William, Essex, and Caroline, to nine; that of Henrico, Charles City, New Kent, and Hanover, to nine; that of Norfolk, Princess Anne, and Nausemond to eight, &c.

According to this plan, there would be an union of all the combinations of separate interests, that the nature of our country, population, and state of society seem to admit. The senate being arranged according to the census, may be considered as representing the whole population of the state in a just proportion. The several counties will retain the advantages of an immediate representation from each respectively, as at present; whilst the members from the districts respectively, will represent the strength and wealth of their respective districts in just and equal proportions. If the senate be elected for four years, as at present, one-fourth of its members vacating their seats annually; and, if the members of the house of delegates who are chosen from the districts at large, be elected for two years, and those from the counties for one only, as at present, it would seem to promise an union of all the advantages of frequent changes, and of permanent bodies, in our state legislature. And if no person were eligible as a delegate until the age of twenty-five years, nor as a senator, until thirty, it might be expected that there would be a greater number of men of experience in the legislature than at present.

ture, it might have been expected that some regard would have been paid to the quota of taxes paid in the several districts, since in case of direct taxes being imposed by congress, it is not improbable this operation would coincide with that of the state taxes: but so little attention, if any, did the general assembly pay to this consideration, that the district composed of the counties of Monongalia, Brooke, Ohio, Harrison, Wood, and Randolph, having 4427 militia only, and paying 593 dollars 57 cents taxes only, sends a member to congress as well as the counties of Loudon, Fairfax, and Prince William, which have 5505 militia, and pays 6770 dollars taxes to the state. The inequality is still greater in some other districts*.

* TABLE .... SHEWING THE MILITIA, AND TAXES, IN EACH DISTRICT.

DIS TRICTS	COUNTIES.	MILlTIA.	TAXES. DOLLARS.
1. Monongalia, Brooke, Ohio, Harrison, Wood, and Randolph		4427	$ 593
2. Berkeley, Jefferson and Hampshire		4777	2892
3. Frederick and Shenandoah		5533	5323
4. Rockingham, Hardy, Augusta, Pendleton and Bath		6147	3338
5. Greenbrier, Rockbridge, Botetourt, Monroe, Kanawha		5024	3018
6. Wythe, Tazwell, Montgomery, Washington, Lee, Grayson and Russel		6099	3211
7. Loudon, Fairfax, and Prince William		5505	6770
8. Westmoreland, Richmond, Lancastar, Northumberland, King George and Stafford		3664	6708
9. Fauquier and Culpeper		4163	4953
10. Orange, Madison, Louisa, and Spottsylvania		4121	7342
11. King & Queen, King William, Essex and Caroline		3296	8628
12. York, Middlesex, Mathews, James City, Gloucester, Warwick, Elizabeth City, Accomack and Northampton		4824	9640
13. Franklin, Bedford, Patrick and Henry		4463	3624
14. Halifax, Pittsylvania and Campbell		4900	6117
15. Prince Edward, Charlotte, Buckingham, Cumberland		4262	7460
16. Powhatan, Goochland, Amelia, Chesterfield		3183	8657
17. Brunswick, Luuenburg, and Mecklenburg		3829	7202
18. Dinwiddie, Prince George, Greensville and Nottoway		3366	7568
19. Sussex, Southampton, Surry and Isle of Wight		4029	7561
20. Norfolk, Princess Anne, and Nausemond		5556	5349
21. Albermale, Amherst and Fluvanna		4004	5876
22. Henrico, Charles City, New Kent and Hanover		3637	8564

Mr. Jefferson's next complaint against the constitution of the house of delegates in Virginia, is, "that it exercises the power of determining the quorum of its own body;" an objection in which I most cordially agree with him. I am even of opinion, that not less than two-thirds of either house should constitute a quorum to do business; and that the assent of the majority of the whole number of delegates, and of the whole number of senators, should be required to the final passage of any law, though a majority of the members present might be sufficient for its passage through the preparatory stages. Every act of the legislature would then be the act of a majority of all the representatives of the people, whereas, at present, one more than the fourth part of either house may be sufficient to pass a law. Thus, forty-eight members in the house of delegates, and seven in the senate, may now give law to a state whose legislature consists of two hundred and eleven members. Such a regulation would be a great security against hasty and ill advised, or ill digested laws, and would give stability to such as may be made;

nor could there be even a speculative doubt, in such a case, that the will of the majority of the people had fairly prevailed.

2. The senate consists of twenty-four members, of whom thirteen are necessary to constitute a house to proceed to business, for whose elections the different counties are divided into twenty-four districts *, and each county of the respective districts once in four years, in rotation, at the time of the election of its delegates must also vote for one senator, who is actually a resident and a freeholder within the district, or duly qualified according to law, and is upwards of twenty-five years of age; the sheriffs of the several counties are to meet within five days, compare their respective polls, and return the person, having the greatest number of votes: The districts being divided into four classes, by lot, one of them is annually displaced, in rotation, and the vacancies are supplied by new elections.+

According to the table given by Mr. Jefferson,++ one half of the number of senators are chosen from the counties, between

* V. L. May 1776. c. 6. Edi. 1794 c. 61. + C. V. Art. 6. ++ Notes on Virginia .... 212

the sea-coasts, and the falls of the rivers: one third of them between the falls of the rivers, and the blue-ridge of mountains;

one twelfth between the blue-ridge and the Alleganey; and the remaining twelfth part between the Alleganey and the Ohio .... This disproportion is daily encreasing, as the population of the western counties advances, and whenever a new constitution for the state is formed, it ought to be corrected. No practical evil, it is believed, has hitherto resulted from it; a single instance will probably be convincing. When the constitution was adopted the number of counties in Virginia was only sixty-one; and two delegates were allowed for the districts of west Augusta, comprehending, I presume, the north-western part of the state. There are now ninety-two counties, to which if we add, the eight counties formed in Kentucky before the erection of that part of Virginia into an independent state, it will appear that the senate must have given their assent to the formation of thirty-eight new counties, and consequently to an addition of seventy-six members to the house of delegates in the period of six and twenty years. Of these new counties, Henry, Madison, Fluvanna, Nottoway, Matthews and Greensville, are all that are recollected to have been made on the eastern side of the blue-ridge of mountains. The senate then do not appear to have been actuated by any narrow local policy in this respect; and we may reasonably conclude that if they had entertained any jealousy of the superior weight and influence of the house of delegates, they would have refused their assent to so great and rapid an extension of its members. This is not mentioned as an argument in favor of the present arrangement; it is Intended only to shew, that practical evils (how justly soever to be apprehended) do not always flow from theoretical imperfections: the imperfection in this part of the constitution of the senate is probably corrected by that which denies to them the right of originating any bill;* and

* As the senate cannot originate any bill whatsoever, they have not the power of correcting, or even of proposing the correction of, any error, into which they may once have fallen, nor of any hasty, unadvised, or unconstitutional measure, to which they may through inadvertance, or any other cause whatever, have once given their assent. A circumstance which ought most strongly to impress that body with a due sense of the prodigious importance, and infinite consequence, attached to their deliberations, and decisions.

the denial of the right of making any amendment whatever to a money-bill may likewise be regarded as an additional security against any great inconvenience resulting from the unequal apportionment of the senate, so long as those parts of the constitution remain in force: whenever an amendment is to take place, it may be worth the enquiry, whether these limitations to the power of the senate ought to be continued upon the present footing; or whether they might not be more advantageously modified as in the constitution of the United States.

Mr. Jefferson remarks,* "that the senate is by its constitution too homogeneous with the house of delegates; being chosen by the same electors, at the same time, and out of the same

subjects, the choice of course falls upon men of the same description."

As we have in fact but one class of citizens in Virginia, it might be difficult to remedy this defect in the constitution of the

senate, otherwise than by some alteration in the mode of election. That which prevails in Maryland, seems to promise fairly to render the choice of senators more select than the mode prescribed by our constitution; but objections have been made, and apparently with great justice, to the power which the senate of that state possess of filling up intermediate vacancies. Senators may also be chosen from any part, of the eastern shore, in which a vacancy may happen. These imperfections are said to have produced some effects, that have been greatly complained of in that state, notwithstanding the superior advantages which elections, by special electors, might have been expected to secure. As by our constitution the senator must be a resident within the district for which he is chosen, the only amendment requisite, probably is, that he should be chosen by a number of electors, selected for that purpose in every county in the district, and chosen in the same manner as delegates are chosen: or the electors might be chosen from the whole district as senators are at present; which would give to the larger counties their proportional weight in the choice. Nine electors

* Notes on Virginia, 213.

in each district would probably be found sufficiently numerous, and small enough to render both the choice of senators, and that of the electors themselves, as select as they could be made in the districts, respectively.

An objection to the present constitution of the senate, also arises from the very small number who compose a quorum in that body, the majority of which (seven only) may be required to reject the intemperate act of one hundred and eighty-seven members of the other house, or may control or defeat the wisest measures which may be brought forward there. So great a disproportion between the two branches of the legislature seems not to be advisable; for the many are impatient of the control of a few. It seems agreed that in free governments, the most numerous branch of the legislature ought to possess a power to originate laws; but, ought they to possess that right exclusively? Our constitution has decided this question in the affirmative, that of the United States contains a preference to the negative. I am inclined to doubt, whether, if the constitution of our senate were assimilated as a legislative body, to that of the senate of the United States; and that of the latter, to the constitution of our state senate, it would not produce an excellent improvement in both. The senate of Virginia is purely a legislative body; they are chosen immediately by the people, in the same manner as their delegates; they have perfectly the same common interest with their constituents, and with the delegates in every respect .... Why then not originate any bill, nor alter an iota of a money-bill? The senate of the United States are not the immediate representatives of the people, but of the states in their politic capacity; they are chosen for a longer period; they cannot be recalled; they cannot be removed by impeachment; they are, themselves judges in cases of impeachment; they form a part of the executive department; vote upon treaties, &c. and concur in all appointments to important offices. Such a body may possibly catch the contagion of executive influence:

it may devise measures in concert with that department, which it may not only promote, but originate in the legislature: it may possibly do more harm than good in the attempt to amend a revenue law; especially since the constitution fixes a permanent

distinction between direct and indirect taxes, which are to be apportioned, or not, among the states, as this distinction may warrant. Many objections may therefore be made to these powers in a senate of the United States, which, to me, do not seem to apply to the senate of a member of the confederacy. These objections, also, would probably be greatly diminished, If the numbers in the house of delegates were lessened, and those in the senate increased. Our present legislature consists of two hundred and eleven members: if a third, a fourth, or even a fifth part of them composed the senate, that body would probably feel a confidence in itself which may soon be wanting;

especially as long as an undue apportionment of its members between the several parts of the state is supposed to exist. They would also possess in reality, more of the confidence of the people; their deliberations would be more respected, and their opposition, if necessary, to any unconstitutional, or intemperate act of the house of delegates more firm and effectual.

3. Each house chuses its own speaker, appoints its own officers, settles its own rules of proceeding (except that a quorum of the senate is fixed by the constitution) and directs writs of election for supplying intermediate vacancies*.

4. All laws originate in the house of delegates, but may be approved or rejected by the senate or be amended with the consent of the house of delegates, except money bills, which in no instance can be altered by the senate but must be wholly approved or rejected:+ on these heads some remarks have already been made.

5. Either house of the general assembly may adjourn themselves, respectively.++ This part of the constitution, for want of a provision similar to that in the constitution of the U. States, may, in case of disagreement between the two branches, produce great inconvenience.

* C. V. art. 7. + Ibidem art. 10.

++ Ibidem art. 8.

6. The general assembly shall neither be prorogued nor adjourned by the governor during their sitting; nor dissolved by him at any time; but he shall, if necessary, either by the advice of the council of state, or on application of a majority of the house of delegates, call them before the time to which they shall stand prorogued or adjourned*.

The abuse of the regal prerogative of proroguing and dissolving the colonial legislature by the governors appointed by the crown, prompted this necessary precaution, to secure to the legislature, a perfect independence of the executive department; not only in respect to its existence, which formerly was made to depend upon the will of the crown or its governors; but in respect to its deliberations, which were frequently interrupted by sudden and unexpected prorogations, whenever any thing unpalatable to that department was the subject of discussion. The wanton exercise of this power gave rise to the appointment of conventions, as has been already remarked; and thus hastened the period which put an end to the power, altogether.

7. The two houses of assembly, by joint ballot, appoint the governor, the members of the privy council or council of state, judges of the supreme court of appeals and general court, judges in chancery, (judges of admiralty before the adoption of the constitution of the U. States) secretary, treasurer, and the attorney general; the judges, secretary and attorney general, to be commissioned by the governor and continue in office during good behaviour.+ They likewise have been in the habit of appointing all officers of the army and navy raised under the authority of the state; and militia officers, above the rank of a field officer; the appointment of militia officers of that rank, and under it, being vested in the executive department.++ All officers which have been created by law, have also generally been filled by the general assembly.¦¦

* C. V. art. 10. + Ibidem art. 13. 14. ++ Ibidem. art. 13.

¦¦ Appointments made in this manner, are not likely to be altogether as select, as the importance of them, may require, all responsibility is lost, in the great number of electors; private interest and intrigues have a large field of action, without much exposure to the chance of detection, and without danger of pu-

This very extensive power not only gives to the legislative an influence and control over the other departments of government, which seems incompatible with the principles contained both in the bill of rights and constitution, which declare, that they ought to be separate, and distinct; but, it is to be apprehended tends to give to the individual members of the former, during every session of assembly, an influence by no means reconcileable to those principles, possessing not only a power of appointing to office, but, not unfrequently the power of removal also, by a kind of annual or triennial ostracism*, too many occasions occur for indulging private partiality, resentment or dislike, as well as the dictates of an intolerant party spirit. Nothing less than a miracle can be expected to produce an assembly of two hundred persons, wholly exempt from the influence of some of these passions. The house of delegates likewise possesses the power of impeaching the governor when he is out of office, and others offending against the state, by mal-administration, corruption or other means by which the safety of the state may be endangered:+ this is a power which they have never yet exercised, and in respect to the officers of the executive department, can rarely have occasion to exercise, whilst they possess the power of removal, in the summary method above mentioned.

The strictures of Mr. Jefferson, on these manifold defects in our constitution, are above all panegyric, in the eyes of those, who wish to appreciate properly, the benefits arising from a government constructed upon the solid basis of a representative democracy, in which the powers should be so divided and banishment. How far the giving to the executive, in certain cases, the right of nominating two or three persons, out of which number the general assembly might by joint ballot of both houses chuse one: or whether the giving to the house of delegate* the power of nominating, by ballot of a majority of that house, three persons, out of which the senate might chuse two, from which number the executive should have the power of appointing one, might be a more eligible mode of making appointments in general, will be well worthy of consideration, if ever there should be a convention to reform the constitution. Perhaps some more eligible mode than either of these might be discovered for the appointment of the governor, members of the privy council, and the judges of the court of appeals, high court of chancery and general court.

* C. V. art. 9. 11. 19. + Ibidem art. 16. 17.

lanced among the several bodies of the magistracy as that no one can transcend its legal limits, without being effectually checked and restrained by the others*. To the attentive perusal of the student I therefore most earnestly recommend them .... But there is one important defect in the constitution of the legislative department, which he has not noticed, viz. that the justices of the county courts are, notwithstanding the principle of separation, contemplated by the framers of the constitution, expressly declared to be eligible to either house of assembly.+ These members unite in their own persons such a variety of powers as appears perfectly incompatible with the principles of a democracy. As legislators, they have not only the power to make laws, but moreover the appointment of the governor, members of the privy council, treasurer, secretary, judges of all the superior courts, attorney-general, register of the land-office, major-generals, brigadiers, and all other militia officers above the rank of a colonel;

all officers of the army and navy in time of war; and, with a few exceptions only, all other officers under the authority of the state;

not forgetting senators to the congress of the United States. As justices of the county courts, they are judges in all cases of life and death where a slave is to be tried; and of all offences under the grade of felony++ at common law of which a free person may be accused. They constitute an examining court, whenever a free person is brought before one of their number, accused of any crime, amounting to felony at common law, and may remand him for a final trial to the district court, or discharge him, as they think proper. They are judges without appeal, in all civil cases, where the matter in controversy is under ten dollars, and perhaps where it is under twenty dollars. They are also judges in all other civil cases arising within their county (whatever be the amount) both at common law, and in equity. They recommend militia officers under the rank of a brigadier, and nominate all sheriffs, and coroners; the former out of their own body. They open roads, build bridges, erect court-houses and

* Notes on Virginia, p. 214, to 235. Paris Edi. + C. V. art. 3.

++ By an act of the last assembly the justices of the county courts have now jurisdiction in some cases of felony; as I have heard.

prisons, and levy the expense thereof upon the county; and lastly, they recommend to the executive, the persons whom they wish to admit into their own body. They may be at one and the same time, members of the general assembly, (or of congress), judges of the county courts, and militia officers of any rank, whatever. So formidable an accumulation of powers in any one set of men, cannot fail, in process of time, of establishing an elective aristocracy in every county; a few generations, perhaps a few years, will convert it into an hereditary aristocracy, in fact. For, those who have power to recommend, or to appoint, to office, in so many instances, will not very long be forgetful of their own families, connections, and friends. The esprit du corps will descend from father to son, and from brother to brother: and as the number of justices in the counties is unlimited, all who have once attained to that rank, will probably be tenacious of it in their families. This then may be regarded as one of those formidable evils in our present constitution, which no future convention should permit to endanger the total subversion of the principles of our government*.

* One very great inconvenience which arises from the justices of the county courts being eligible as members of assembly, begins to manifest itself very strongly with respect to those courts. The constitution declares that all persons holding lucrative offices shall be ineligible to either house of assembly .... Those members who are justices of the county courts, being in all probability, equally tenacious of their seats in the legislature, and upon the bench of their courts, may be supposed to be unwilling to accept of any compensation for their services as justices, since that would exclude them from a seat in the legislature:

and not less unwilling to agree to any proposition for improving the organization of the county courts, which might hazard their removal from their station as judges of them. Hence any improvement in the plan of those courts is rendered, if not impracticable, at least extremely improbable, without a change in the constitution. When services are gratuitously rendered, it cannot be expected that they will be performed with the same diligence, punctuality, or even ability, as where they meet with due compensation and encouragement. The great number of justices in the counties, generally, lessens the weight upon them individually; but it may well be doubted, whether the public is as well served, as if a few persons only were employed, selected for their superior abilities and integrity, and properly rewarded for their services. Great complaints have been made of the unequal administration of justice in the several counties, owing, as has been said, to the different conduct of the justices in many of them, either in holding the county courts regularly and going through their dockets, or in omitting to do so for months and even years together.

Mr. Jefferson in his draught of a constitution, proposes sundry limits to the power of the legislature; perhaps they do not go quite far enough; whatever may be regarded as the fundamental laws of a state ought to be fixed beyond the power of the ordinary legislature to alter; such ought all laws to be deemed which respect the rights of the citizen, or relate to the disposition of the permanent property within the state: the abolition of entails, and the establishment of the succession to estates, in parcenary, two fundamental laws of a democratic state, rest now upon legislative authority, only: they ought to receive the inviolable sanction of the constitution. The exclusion of aliens from offices of trust, or profit, or from holding lands, unless they actually reside within the state; a similar exclusion of such other description of persons, as sound policy might lead us to reject from the class of citizens; the security of equal rights to all whom such a policy might admit into the class of citizens;

the independence and total separation of the several departments of the government from each other; their respective rights and duties, as they relate to each other, and to all others as far as they can be prescribed by the constitution of the state, ought to be placed above the reach of the ordinary legislature.

There is one defect in our constitution, which I shall particularly notice, and then conclude this part of our review of it. Any person who is entitled to demand against the common. wealth any right in law or equity, may petition the high court of chancery, or the district court holden in Richmond, according to the nature of his case, for redress, and such court shall proceed to do right therein*. But if this right or demand happens to be of a pecuniary nature, it seems to be held that the treasurer cannot pay the party entitled thereto, unless an appropriation for that purpose shall have been first made by the legislature. Thus, the party, notwithstanding the judgment or decree of the court in his favour, is still left dependent on the good will of the legislature for his redress. In other words, the legislature, if it be unjust enough to do so, may frustrate the constitutional act of the judiciary department, and keep any public

* L. V. Edi. 1794, c. 85.

creditor out of his just debt forever. This might easily be avoided, by an amendment to the constitution, declaring, that no money shall be drawn from the public treasury, but in consequence of appropriations made by law, or of the judgment or decree of one of those courts.

II. The constitution, powers, and duties of the executive department are next to be considered.

The governor is chosen annually by joint ballot of both houses of assembly: he may be continued in office three years, successively, but is ineligible for four years after he is out of office; and when out of office he may be impeached by the house of delegates: he shall with the advice of council exercise the executive powers of the government, according to the laws of the commonwealth; and shall not under any pretence exercise any power or prerogative, by virtue of any law, statute or custom of England: but he shall with the advice of council have the power of granting reprieves or pardons, except where the prosecution shall be carried on by the house of delegates, or the law shall otherwise particularly direct; in which cases no reprieve or pardon shall be granted, but by resolve of the house of delegates. An adequate but moderate salary shall be settled on him during his continuance in office. He may either by the advice of the council, or on application of a majority of the house of delegates, convene the legislature: he may appoint militia officers (not above the grade of a county lieutenant, I presume) "with the advice of council, or recommendations from the respective county courts": he may embody the militia with the advice of the privy council, and when embodied, shall alone have the direction of the militia under the laws of the country: he is to commission the judges of the superior courts, the secretary, and attorney general, when appointed by the general assembly, or (in case of a vacancy during the recess of the legislature) by the executive, with advice of council: He is likewise, with the advice of council, to appoint and commission justices of the peace, for the counties, such appointments to be made upon the respective recommendations of the county courts; and sheriffs and coroners, in like manner*.

* C. V. art. 9. 10. 13. 14. 15. 16. 18.

The privy council consists of eight members chosen also by joint ballot of both houses, either from their own members, or the people at large; they annually chuse a president out of their own members, who in case of the death, inability, or necessary absence of the governor "from the government," shall act as lieutenant governor. Four members constitute a quorum, and their advice and proceedings, must be entered on record and signed by the members present, (but any member may enter his dissent to any part thereof,) to be laid before the general assembly when called for by them. A sum of money appropriated for that purpose, is divided annually among the members in proportion to their attendance; two of them are removed by joint ballot of both houses at the end of three years, and are ineligible for the three next years*.

Such is the constitution of the executive department; and nothing surely can more strongly evince the necessity of fixing the fundamental laws of the state, in a government which professes to make the several departments of government, separate, distinct, and independent of each other, than this short view of the manner in which the executive department in Virginia, is chosen, paid, directed, and removed, by the legislative. It possesses not a single feature of independence: nothing is necessary but for the legislature to give to its mandate the form of a law (whatever be the nature of that mandate) and it acquires instantly a constitutional sanction, and obligation upon the executive. How then can the legislative, and executive departments of the government be said to be "separate and distinct, so that neither shall exercise the powers properly belonging to the other."+ How far such a qualified negative upon all their proceedings as that which is confided to the president of the United States,++ an

* C. V. art. 11. + Ibid. art. 3. Bill of Rights, art. 5.

++ Mr. Jefferson, in the draught of a constitution for this commonwealth, subjoined to his Notes on the State of Virginia, proposes that the governor, two counsellors of state, and a judge from each of the superior courts, shall be a council to revise all bills, which shall have passed both houses of assembly, in which council the governor, when present, shall preside. Every bill before it becomes a law, shall be presented to this council, who shall have a right to advise its rejection; upon which similar proceedings shall be had, as when the president of the United States refuses his assent to an act of congress.

election conducted upon similar principles, by electors chosen in the several senatorial districts; a perfect independence in respect to continuance in office; an incapacity to be re-elected for a period at least equal to that for which he may be elected; and a salary not to be encreased or diminished during his continuance in office*, may render the governor something more than the minister, (I had almost said, the finger) of the legislature, may well deserve the most mature consideration of those, to whom the important task of reforming our constitution shall be confided. But until something of this sort be done, until the members of the privy council (if it should be judged expedient to continue that part of the executive,) shall be rendered equally independent of political, and of personal, influence, the executive department of this commonwealth can never be regarded as a separate, co-ordinate, and distinct branch of the government. The legislature will in fact possess and exercise all the powers of the executive. If the union of these powers in the same men or body of men be dangerous to the state, is that union less dangerous when the legislature has the executive at its devotion, than when the executive dictates to an obedient legislature? Were the complying parliaments of the Tudors, or the late national assembly of France, more formidable to virtue or more terrible to the human race? When the legislature is at the devotion of the executive, an uniform, systematical tyranny prevails; the legislature being in fact no more than a screen interposed between the monarch and the people, to take off the odium of his tyranny: but when the executive is at the disposal of the legislature, faction, intrigue, jealousy, resentment, hatred, revenge, and every other malignant and detestable passion manifest the extreme of human depravity and corruption, until the whole state is thrown into a paroxysm of phrenzy, anarchy and confusion; from which it recovers only to submit to a single tyrant instead of an host of despots.+ The people of Virginia must ever be equally averse to embrace either of these alternatives. Nothing but a complete reform in this

part of our constitution can deliver us from the danger of one

* See Mr. Jefferson's draught of a constitution, art. 3. Title Governor. + Let those who doubt this remember the Dictators of Rome: or if they re

quire a modem instance, let them turn their eyes to the establishment of the

Consular Government in France.

of them: especially if by any fatal mischance, the federal union should be broken, and Virginia take a rank among the nations, without first reforming her constitution. Those who deprecate the late horrid scenes in France, may then chance to find an equal subject of lamentation at home.

If the governor, from the mode of his appointment, may be considered as too much subjected to the influence and control of the legislative body, the members of the council of state cannot be more exempt from the same degree of influence: perhaps the personal independence of those members is too much exposed even to the personal influence of the individuals, who, by a kind of ostracism, are enabled to expose them to a degree of popular disgrace, by an official exile for three years. This institution owes its origin to a laudable jealousy of official influence. In its application, it is probable that such a consideration had never been thought of. In truth, the imbecility of the executive department is the best security against any undue influence arising from that quarter. No man was ever dangerous to a state who neither has, nor can have any thing in his gift. Scarce a single office in the state is at the entire disposal of the executive, for where the assembly do not appoint, the county courts recommend; not having the command of the treasury, they are equally destitute of pecuniary influence: what reason is there then for this odious, though oblique mode of inculpating men, against whom no shadow of a crime can be alledged? Surely the method of going out by rotation is infinitely preferable to a mode of removal, which must, in general, wound the feelings of those who exercise the power, as well as those who feel its effects*.

* The members of the council who have been removed in consequence of this unavoidable regulation in the constitution, have, in several instances, been re-elected as soon as the period of their incapacity is removed; a certain proof of what is advanced above. Mr. Jefferson, in his draught of a constitution, proposes that the members of the privy council shall be chosen, as at present, shall hold their offices seven years, and be ineligible a second time; and while they continue in office, shall hold no other office or emolument under this state, or any other state, or power whatsoever. Such an arrangement would, apparently, secure to them that personal independence, which at present seems to be altogether wanting.

The council of state seems to possess whatever power to deliberate, may remain with, or be confided to the executive department: the governor can constitutionally perform no one official act without their advice, except in his capacity of commander in chief of the militia, when actually embodied; but he cannot embody them by his own authority, nor without advice of council. On the other hand, the council seem equally destitute (by the constitution) of the power of acting, as the governor of deliberating. Their president indeed, "in case of the death, inability, or necessary absence of the governor from the government," shall act as lieutenant-governor*. And a law of the state provides that in case of the death, or inability of both, in the recess of the general assembly, the privy councillor, whose name stands next in the list of their appointments, shall officiate as lieutenant governor; and that in the absence of the governor, such intended absence having been previously notified to them by him, and entered on their journals, if any business to be transacted at the council board necessarily requires dispatch before he can attend to it, they may proceed without him, and the act shall be as valid as if he had been present.+

The governor, with the advice of council, we may remember hath the power of granting reprieves or pardons, except where the prosecution shall have been carried on by the house of delegates, or the law shall otherwise particularly direct; in which cases no reprieve or pardon shall be granted but by the resolve of the house of delegates.++ The committee of revisors, appointed by the general assembly in the year 1776,¦¦ to prepare a code of laws adapted to a republican government, proposed to abolish the power of pardon in all cases, and generally to mitigate and apportion punishments according to the nature and degree of the crime. I know not upon what principle the bill was rejected, but I presume it was thought safer to continue the power of pardon, on its present footing, than to trans-

* C. V. art. 11. + L. V. Edi. 1794. c. 62. ++ C. V. art 9. § Mr. Jefferson, Mr. Pendleton, Mr. Wythe, Mr. George Mason, and Mr. Thomas Ludwell Lee, were appointed; but the three first only performed the duty assigned to them.

fer it, in effect, to juries, whose lenity might too often interest them in favour of a criminal, from whom all chance of pardon might be taken away by their verdict against him. I am therefore inclined to think, that however just and proper it be for punishment to follow the crime with certainty, in all cases, yet that more offenders might escape if the power of pardon were abolished, than will ever escape by means of it. In case of treason against the commonwealth, the power of pardon is taken away from the governor by the act of 1794, c. 168*, nor can the executive now remit any fine or amercement assessed by a jury, or imposed by any court of record, court martial, or other power or authority authorized to assess or impose the same.+ And in cases of impeachment, as the prosecution must be carried on by the house of delegates, the power of pardon is evidently taken away from the governor by the constitution; but under these restrictions, the power of pardon still remains with him, with the advice of the council.

Such are, in general, the powers of the executive department of the government, as provided for by the constitution;

occasional acts were passed during the revolutionary war for extending them: and, in two cases, acts of indemnity++ were passed, to screen the executive from the suits of private persons who might suppose themselves injured by some exertions of authority for the salvation of the country, but which were neither authorized by the constitution, nor by any existing law. These acts demonstrate the defects of the constitution, or the improvidence of the legislature: they do more .... they shew the danger to which the commonwealth may be exposed, for want of a proper arrangement of the powers of government, and the no less danger to the persons and properties of individuals, whose redress for real injuries might possibly be taken away by an act of the legislature. The validity of these acts of indemnity having never been judicially called in question, it is hard to say what respect might have been paid to them, in such a case. Perhaps the constitution of the United States, which prohibits the

* L. V. Oct. 1776. c. 3 Edi. 1785.

+ L. V. Edi, 1794. c. 62. Sess. acts of 1800, c. 59.

++ Oct. 1777, c. 6. and Oct. 1; 1781, c. 24. Sessions acts.

states from passing any ex post facto law, may be regarded as preventing the passing of such acts in future: but surely a constitution which seems to require such aid, for the protection of its best officers, against the vindictive malice of its worst citizens, or secret enemies, must be very inadequate to the purposes of a free, sovereign, and independent state. The imbecility of an executive, possessing no independent authority with respect to the public force, must in time of war, or danger, place it under the immediate direction of the legislature, which is thus transformed into a numerous executive council, annually elected. The incapacity of such a body to concert and conduct uniform measures, for such active operations as may be required for the defence of the state, is self-evident to every man of the least discernment. Nothing short of omniscience could prepare the members, before the time of assembling, to act according to the existing state of things; either the time must be lost in acquiring the necessary knowledge of these things, or ignorance, faction, and intrigue, will disconcert every measure that maybe proposed. A state thus governed would equally be exposed to internal convulsions, and to foreign insult or dominion. The expectation of forming an immediate and effectual federal government of the states, probably occasioned much of this inattention to the structure of the government so far as relates to its foreign concerns. The danger arising from this circumstance is strongly depicted by Mr. Jefferson*. Every man must shudder with horror at the proposal which he mentions of making a dictator: had the legislature done so, the executive in all probability must have submitted without a struggle; and the opposition of the judiciary to such an authority must have been equally ineffectual. Inter arma silent leges, is a maxim which will ever be peculiarly applicable to that department, though in time of peace it may be regarded as the palladium of genuine liberty. Happily for us, many of the inconveniences which might have been apprehended in Virginia as a sovereign state, unconnected with any other, are now in a great measure remedied by the adoption of the federal constitution, by which all those objects which respect other nations or states, are consigned to the care, atten-

* Notes on Virginia, 238.

tion, and regulation of the federal government; whilst those

which respect the domestic happiness, interest, and advancement of the state, its internal economy, peace, and good order, form an ample field for the wisdom and patriotism of the state-legislature to exert themselves, without hazarding, as we may reasonably hope, a repetition of those dangers to which a constitution formed without a precedent, and without experience to

guide its framers, at first exposed us.

In the draught for a constitution of this state, prepared by Mr. Jefferson*, there is an excellent delineation of the powers and duties which should be assigned to the governor, and council re

spectively; and with recommending it to the very attentive perusal of the student, I shall conclude my remarks on this part of the constitution.

III. The judiciary department of the government was originally vested in three superior courts, viz. the court of admiralty, the high court of chancery, general court of common law jurisdiction, and the supreme court of appeals;+ besides the county and corporation courts, which existed antecedent to the revolution. The court of admiralty was discontinued immediately after the adoption of the constitution of the United States, by which the subjects of its jurisdiction were transferred to the federal government; and the judges were elected judges of the general court.++ The judges of the court of appeals and of all the superior courts hold their offices during good behaviour;

but the constitution is silent as to the tenure of office by the justices of the county courts; the ordinance of convention "to enable the present magistrates and officers to continue the administration of justice", authorises the executive upon complaint against any justice of the peace then in commission of misfeazance in office or disaffection to the commonwealth, to remove him from his office, if they shall be of opinion that the complaint is just.¦¦ An act nearly similar was also made in October, 1778,

* Notes on Virginia .... ad finem. + C. V. Art. 14. 15.

++ See V. L. 1788, c. 71. Sess. Acts. ¦¦ Ibidem, Edi. 1785, p. 37.

c. 5*. but was repealed in the year 1787, (Sess. Acts, c. 23.) "as contrary to the true spirit of the constitution" of which opinion the general court appear to have been, in the case of a magistrate who had been removed from office, by the executive under that law. The constitution declares that the judges of the superior court shall have fixed and adequate salaries; but is silent as to the justices of the inferior courts, who being eligible as members of the general assembly, seem precluded from any salary, by the same article.+ Whatever idea of permanency, may be supposed to have been intended by the expressions in the constitution, the salaries of the judges have from time to time been changed; and though nominally less than was fixed by the acts constituting the courts respectively, may be considered at present, as rather more, than less than the standard then adopted; the duties of the offices, respectively, are probably multiplied tenfold, since that period, yet the salaries are regarded as adequate by the legislature; and from their opinion upon this subject there is no appeal. The judges are removeable from office on impeachment by the house of delegates, and conviction of corruption or other misfeazance in office, according to the station of the person impeached; who, if a judge of the general court must be tried in the court of appeals; but the judges of the other courts must he tried in the general court.++

The separation of the judiciary power from that of the legislative, and executive, and the perfect independence of the former, seems to have been in theory, a favourite object with the people of the United States, generally, both in their respective state constitutions, and in that of the United States. But this theory has perhaps in no one instance been successfully carried into practice. In the federal constitution, which in this respect appeared to be the most perfect, this great desideratum was thought to have been attained: but experience seems to prove the contrary. Of what importance a successful arrangement of this part of the government, may be, in such a commonwealth as our own, connected as it is with the federal government, cannot be more

* See V. L. Edi. 1785, p. 81.

+ C. V. Art. 14.

++ C. V. Art. 16, 17.

satisfactorily illustrated, than we find it in the Federalist, number 78, and 79. As the observations which they contain on this subject are too valuable to be abridged, I shall give them nearly at length.

"The standard of good behaviour for the continuance in Office of the judicial magistracy, is certainly one of the most valuable of the modem improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince. In a republic it is a no less excellent barrier to the encroachment and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

"Whoever attentively considers the different departments of power must perceive, that in a government, in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution: because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honours but holds the sword of the community. The legislative not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or the wealth of society, and can lake no resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm, even for the efficacy of its judgments.

"This simple view of the matter suggests several important consequences. It proves incontestibly that the judiciary is beyond comparison the weakest of the three departments of power*;

that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself,

* The celebrated Montesquieu speaking of them says, "of the three powers above mentioned the JUDICIARY is next to nothing. Spirit of laws. Vol. 1. p. 186.

against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: I mean so long as the judiciary remains truly distinct from both the legislative and executive. For I agree "that there is no liberty if the power of judging be not separated from the legislative and executive power."* And it proves in the last place that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; as all the effects of such an union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security.

"The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution, void. Without this, all the reservations of particular rights or privileges would amount to nothing.

"Some perplexity respecting the right of the courts to pronounce legislative acts, void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose

+ Montesquieu's Spirit of Laws, vol. 1. p. 181.

acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.

"There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised is void. No legislative act, therefore, contrary to the constitution can be valid. To deny this would be to affirm, that the deputy is greater than his principal; that the servant is above his master;

that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do, not only what their powers do not authorize, but what they forbid.

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, when it is not to be collected from any particular provision in the constitution. It is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be regarded by the judges as a fundamental law. It therefore belongs to them, to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcileable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

"Nor does this conclusion by any means suppose a superiority of the judiciary to the legislative power. It only supposes

that the power of the people is superior to both: and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than by the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

"This exercise of judicial discretion in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens that there are two statutes existing at one time, clashing, in whole or in part, with each other; and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation; so far as they can by any fair construction be reconciled to each other, reason and law conspire to dictate that this should be done: when this is Impracticable it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time should be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable that between the interfering acts of an equal authority that which was the last indication of its will, should have the preference.

"But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule, as proper to be followed. They teach us, that the prior act of a superior, ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

"It can be of no weight to say, that the courts on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL, instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation if it proved any thing would prove, that there ought to be no judges distinct from that body."

"If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges, which must be so essential to the faithful performance of so arduous a duty.

"This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill-humours, which the arts of designing men, or the influence of particular conjunctures sometimes disseminate among the people themselves, and which though they speedily give place to better information and more deliberate reflection, have a tendency in the mean time to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community .... Yet it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty, as faithful guardians of the constitution, where legislative invasions have been instigated by the major voice of the community.

"But it is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill-humours in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust

and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity, and confining the operation of such laws. It not only serves to mode. rate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our government, than but few may be aware of. The benefits of the integrity and moderation of the judiciary, have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may be to-morrow, the victim of a spirit of injustice by which he may be a gainer to-day. And every man must now feel that the inevitable tendency of such a spirit, is to sap the foundation of public and private confidence, and to introduce in it's stead universal distrust and distress.

"That inflexible and uniform adherence to the rights of the constitution and of individuals which we perceive to be indispensable in the courts of justice can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence. If the power of making them was committed either to the executive or legislative, there would be danger of an improper complaisance to the branch which possessed it;

if to both there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws.

"There is yet a further and a weighty reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duties in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents, must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society, who will have sufficient skill in the laws, to qualify them for the station of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those, who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice, to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score, would be greater than they may at first sight appear: but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

"Next to permanency in office, nothing can contribute more to the independence of the judges, than a fixed provision for their support. In the general course of human nature, a power over a man's subsistence, amounts to a power over his will. And we can never hope to see realized in practice the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources, on

the occasional grants of the latter. The enlightened friends to good government in every state, have seen cause to lament the want of precise and explicit precautions in the state constitutions on this head. Some of these, indeed, have declared that permanent* salaries should be established for the judges; but the experiment has in some instances shewn, that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention has accordingly provided, that the judges of the United States, "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office."

"This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood, that the fluctuations in the value of money and in the state of society, rendered a fixed rate of compensation in the constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature, to vary its provisions in conformity to the variations in circumstances; yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty, by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial offices, may from time to time be altered as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him.

"This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed, that together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the states in regard to their own judges.

* See Constitution of Massachusetts, chap. 2. sec. 1. art. 13.

"The precautions for their responsibility, are comprised in the article respecting impeachments; they are liable to be impeached for mal-conduct by the house of representatives, and if convicted may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one, which we find in our own constitution in respect to our own judges."

The duties of the judiciary department, in general, form the subject of several articles in our bill of rights and constitution*, which contain certain fundamental rules for the direction of that department on occasions which respect the life, liberty, or property of the individual, and for his security against all attempts to injure or oppress him, either by private means, or under the colour of public authority. These will be pointed out, under their proper heads, as they occur in the course of our examination of the several subjects connected with them. At present it will be sufficient to remark, that no citizen of Virginia can be prejudiced either in his person or his property, by any authority, or the abuse of any authority delegated to any branch of the government of this commonwealth, (or of the United States) so long as the judiciary departments of those governments, respectively, remain uncorrupt, and independent of legislative or executive influence or control. But whenever the reverse of this happens, by whatever means it may be effected (whether fear or favour) liberty will be no more, and property but a shadow.

Having in the preceding parts of this tract, suggested some hints for the amelioration of the constitutions of the legislative and executive departments, I may be pardoned for some remarks upon the judiciary department likewise, which are offered with the same view.

The nature of the judicial office demands two indispensable qualifications in a judge: an integrity not to be shaken by fear, or favour, or corruption; and a thorough knowledge of the constitution of his country, the rights of his fellow citizens, and the

* Bill of Rights, art. 9. 10. 11. Constitution, art. 15. 16. 17.

laws made for their protection and security: if either be wanting the wisdom of a Bacon, or the integrity of an Hale will not make up for the deficiency.

To secure the integrity of a judge he must be placed above the reach of every species of temptation; he must be without hopes and without fears, as far as relates to the tenure of his office and the continuance of his salary. That salary should not only be sufficient to place him above the temptations of avarice, or necessity, but to enable him to devote his whole time and attention to the duties of his office. If a judge be dependent upon other pursuits for a competent subsistence, he must of necessity at some times neglect either his duties, or those studies, which are necessary to qualify him for a proper discharge of them: if he be indigent and distressed in his private circumstances, his judgment may be warped in favour of the debtor to the prejudice of the creditor; or, what is infinitely worse, it may encourage the offer, (and even compel the acceptance,) of bribes, or other means of corruption. Transactions of this nature may be conducted in a manner which defies detection. If the want of an independent salary may expose a judge to such temptations from every party in whose cause he may sit, how much more to be dreaded is that influence from any other department of government, which can raise or depress him as it pleases?

In a country whose constitution and government is complicated, the laws voluminous, intricate, and not unfrequently contradictory, ability is, in point of importance, a qualification almost equally as necessary to a judge, as integrity itself. This qualification must be sought for among those gentlemen of the bar, whose long practice and experience and pre-eminent talents have singled them out, and gained the notice, esteem, and confidence of their countrymen in general. Such men will not be prevailed upon, to resign an extensive, and lucrative practice, for a scanty or precarious salary, and a laborious office:

men of inferior talents, only, whose professional emoluments perhaps scarcely defray the expence of their attendance on the courts, will be the sole candidates for the imaginary independence annexed to a scanty salary. The bench, instead of com

manding the respect of the bar must discover its own inferiority;

and this discovery will not be confined to those whom it affects:

all will see and hold in contempt the decisions of men of inferior capacity. Hence, no person will rest satisfied with, or submit to a judgment pronounced against him by judges, whose incapacity is generally admitted; Every cause must go to the supreme court of appeals, for the correction of errors supposed to have been made in every decision, nor will the final determinations of that tribunal, (for that tribunal also must in time be filled with men of the same character) satisfy the minds of unsuccessful litigants: the disgust, and contempt of the judiciary will become general, and it will be soon regarded as the rotten part of the constitution. Nor is this all .... a spirit of litigation is always proportionate to the delay, as well as to the chances of success, in a law-suit; and whenever, from the operation of those causes, it becomes usual to carry all suits, by appeal, to the highest tribunal in the state, the wheels of justice must become too much clogged to perform a complete revolution. This has been exemplified already in the general court, where in a very few years, suits had so multiplied, by appeals from the county courts, and other causes; that the legislature thought it justified a declaration, that the delays inseparable from its constitution, were in many instances equal to a denial of justice. Such an accumulation of suits in the court of appeals would be without remedy, but by a change in the constitution itself.

If the judicial office be made an object worthy of the acceptance, and even ambition of men of the first legal talents in the state, the mode of selecting and promoting them may perhaps be improved by requiring that judges of the general court, and judges of the superior courts in chancery, should be recommended by a joint ballot of the judges of those courts and of the court of appeals, and, that the judges of the court of appeals should be selected from the judges of those courts*. The choice

* The judges of the court of appeals, high court of chancery, and general court might assemble, and by joint ballot, recommend three persons to till any vacancy in the superior courts of chancery and general court, out of whom the governor, with the advice of council, might either appoint one, or nominate two to the general assembly, am! that body by joint ballot of both houses, chuse one

by these means would probably fall upon the most distinguished characters at the bar throughout the state: and a second selection could scarcely fail of rendering the court of appeals equally venerable and revered.

The many great objections to our present county court system were shortly mentioned in speaking of that article of the constitution which secures to the justices of those courts, the right of sitting in the legislature; it is not my purpose to enlarge upon the subject in this place, as this essay has already swelled beyond the limits which were originally proposed for it*.

Several miscellaneous articles in the constitution remain, which it does not seem necessary to notice at present. I shall mention one only, which relates to the unity of the state and

And in case of a vacancy in the court of appeals, the governor, with the advice of council, might nominate two judges of the high court of chancery, or general court, of whom one might be chosen by joint ballot of both houses of assembly. Elections made in this manner would probably be entitled to, and meet with universal approbation.

* It would far exceed the limits of a note to suggest the many necessary improvements required in the county court system. I will nevertheless mention the outline of one, which would, if adopted, pave the way to the introduction of many more.

Let one fit, able, and discreet person, learned in the law (where persons of that character can be found) be selected in every county, who, together with the persons of the like description, selected from the three next adjacent and most convenient counties thereto, might be constituted judges of the court of common pleas, and oyer and terminer, for their several counties, and any two of them constitute a court, to be held quarterly in their respective counties, with jurisdiction in all civil cases at common law, above the value of thirty dollars, and in all cases of simple larceny, and other lesser offences against the commonwealth. They might also be constituted judges in chancery within their district, or circuit, with power to hold two sessions, annually, at some one county court-house within their circuit. Let these judges receive an adequate compensation for their services, either by a fixed salary, or by wages according to their attendance: Let them be ineligible to either house of assembly, and let the power of recommending justices of the peace, sheriffs, and coroners, be transferred to them. Let them moreover hold their offices during good behaviour, or during the existence of their courts.

which seems to have escaped the attention of those who arc said to have been engaged in promoting a division of it; making the blue ridge of mountains the boundary.

"The western and northern extent of Virginia (except as to the parts ceded to Maryland, Pennsylvania, North Carolina, and South Carolina) shall stand, in all respects, as fixed by the charter of King James the first, in the year one thousand six hundred and nine, and by the public treaty of peace between the courts of Great-Britain and France, in the year one thousand seven hundred and sixty three; unless by act of legislature, one or more territories shall hereafter be laid off, and governments established westward of the Alleganey mountains."* Under this clause of the constitution the cessions of territory heretofore made in congress, and the erection of Kentucky into an independant state, were fully authorized.+ But whilst the constitution of the state remains unchanged, the commonwealth cannot be subdivided, or dismembered of any part of its territory, not westward of the Alleganey mountains. And the Counties, in that part of the state, it is presumed, are not in such a situation, at present, as to render the establishment of a separate government, between the Alleganey mountains and the state of Kentucky, desirable at this time.

Thus having taken a pretty comprehensive view of the constitution of the commonwealth, I shall next proceed to consider that of the United States somewhat at large; the intimate connection and union of the two governments thereby established, requiring that they should as far as possible be treated of together;

each being in fact but a distinct part of one great political system, to which no perfect parallel can be found in any other country, or in the annals of any other people.

* C. V. art. 21

+ L. V. Edi. 1794. c. 40, and 53. The constitutionality of the cession made to congress for the permanent seat of government (Ibid. c. 50.) seems questionable.

NOTE E.

OF THE UNWRITTEN, OR COMMON LAW OF ENGLAND;

AND ITS INTRODUCTION INTO, AND AUTHORITY WITHIN THE UNITED AMERICAN STATES.

HAVING accompanied the commentator, to the fountain head, from whence he deduces the common law of England, it becomes us to trace its progress to our own shores. This, as it respects the commonwealth of Virginia, considered as an independant state, unconnected with any other, might have been regarded as an unnecessary trouble at this day; the convention, by which the constitution of the commonwealth was established, having expressly declared, "That the common law of England, and all statutes, or acts of parliament made in aid of the common law, prior to the fourth year, of James the first, which arc of a general nature not local to that kingdom, together with the several acts of the colony then in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force, until the same shall be altered by the legislative power of the commonwealth." Ordinances of Convention May, 1776, c. 5. Chancellor's Revisal, p. 37.

But some late incidents having given rise to an opinion, that the common law of England, is not only the law of the American States, respectively, according to the mode in which they may, severally have adopted it, but that it is likewise the law of the federal government, a much wider field for investigation is thereby opened; of the importance of which, the general assembly of Virginia, at their session in the winter of 1799, have thus expres

sed their sentiments, in behalf of themselves, and their constituents.

"It is distressing to reflect, that it ever should have been made a question, whether the constitution of the United States on the whole face, of which, is seen so much labour to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; a law that would sap the foundation of the constitution, as a system of limited, and specified powers."

My present purpose, therefore, is, in the compass of this note to enquire, how far the common law of England, is the law of the federal government of the United States? Should the enquiry seem long, to some of my readers, the importance of the subject I trust, will be deemed a sufficient apology for it.

A question has lately been agitated, whether the common, or, unwritten law of England, has been adopted in America, by the establishment of the constitution of the United States; or, in other words, how far the laws of England, both civil and criminal, make a part of the law of the American States, in their united and national capacity.

Judge Ellsworth is reported, on a late occasion, to have laid it down as a general rule, that the common law of England is the unwritten law of the United States, in their national or federal capacity*. Judge Washington, also, is said to have delivered a similar opinion, upon another occasion. The like opinion has been advanced on the floor of the federal house of representa-

* Since this essay was transcribed for the press, I have seen an "account of the trial of Isaac Williams" in the federal district court, for the district of Connecticut: therein, the chief justice of the United States is reported to have delivered it as his opinion, that "the common law of this country remains the same, as it was before the revolution." This doctrine I apprehend, goes much farther than that which I have stated above.

tives .... concurrent opinions from such respectable authority deserve to be candidly, and respectfully examined, where any doubt is entertained of their correctness; and where any such doubt is entertained, they ought to receive an early and full discussion; otherwise they will soon acquire the force of prece

dents. These are often more difficult to be shaken than the most cogent arguments, when drawn from reason alone.

This question is of very great importance, not only as it regards the limits of the jurisdiction of the federal courts; but also, as it relates to the extent of the powers vested in the federal government. For, if it be true that the common law of England, has been adopted by the United States in their national, or federal capacity, the jurisdiction of the federal courts must be co-extensive with it; or, in other words, unlimited: so also, must be

the jurisdiction, and authority of the other branches of the federal government; that is to say, their powers respectively must be, likewise, unlimited. How far this may be the case, it is my present purpose to examine with candour.

In the prosecution of this subject it will be necessary to enquire,

1. Whether the several colonies of Great Britain, which now compose the United States of America, brought with them the laws of the mother-country, so far as they were applicable to the situation and circumstances of the colonies respectively or not.

2. What part of those laws might be deemed applicable to the situation and circumstances of the colonies, respectively; and as such, adopted by them severally.

3. What part of those laws which might have been deemed applicable to their situations, respectively, as colonies, were abrogated and annulled by the revolution, or retained by the states, respectively, when they became independent and sovereign republics.

4. Lastly, how far that portion of the laws of England, which may have been retained by the states, respectively, has been engrafted upon, and made a part of, the constitution of the United States.

I. We are to enquire, whether the several colonies of Great Britain, which now compose the United States of America, brought with them the laws of the mother country, so far as they were applicable to the situation and circumstances of the colonies, respectively, or not.

Although very little doubt upon this part of our inquiry was, perhaps, ever entertained in America, yet the celebrated judge Blackstone in his commentaries on the laws of England, expressly denies that the common law of England, as such, had any allowance or authority in the British American colonies. "Plantations, or colonies in distant countries, as he observes, are either such where the lands are claimed by the right of occupancy, only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated they have been either gained by conquest, or ceded by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between the two species of colonies, with respect to the laws by which they are bound. For it hath been held, that if any uninhabited country be discovered, and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force"... Afterwards he adds: "But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but till he does actually change them, the ancient laws of the country remain, unless such as are against the laws of God, as in the case of an infidel country. Our American plantations are principally of this latter sort; being obtained in the last century, by right of conquest, and driving out the natives, or by treaties. And therefore the common law, as such, has no allowance or authority there."*

* 1 Blackstone's Com. p. 106, 107, 108.

As I apprehend the opinion here cited is not as correct as many others of the learned commentator, I shall venture to state some objections to it: observing by the way, that his conclusion is applicable only to the colony of New-York, which was originally settled by the Dutch, and afterwards conquered by the English, and ceded to the crown by the treaty of Breda in 1667; and perhaps, to the adjacent colony of Jersey, which was likewise ceded by the same treaty, and was also peopled at that time by the Dutch, the boundaries between the two colonies being not then established*. But with respect to the other colonies;

whether they were obtained by purchase from the Indian natives, as was certainly the case with Pennsylvania, and as it has been said, was the case with several others; or whether the territory was acquired by conquest; or by cession; in either case, as those persons by whom the colony was settled, were neither the people who were conquered, nor those who were ceded by treaty, to a different sovereignty; but the conquerors, themselves, or colonists, settling a vacant territory ceded by treaty, the conclusion here made by judge Blackstone will appear to be erroneous. For baron Puffendorf informs us, that sovereignty, by way of conquest, is acquired when a nation, having just reason to make war upon another people, reduces them by the superiority of their arms to the necessity of thenceforward submitting to the government of the conquerors.+ And with respect to countries ceded by treaty, Grotius tells us, it is not the people that are alienated, but the perpetual right of governing them as a people.++ Now the British emigrants by whom the colonies were settled were neither a conquered nor a ceded people, but free citizens of that state, by which, the conquest was made, or, to which, the territory was ceded; the Indians, the former people, having uniformly withdrawn themselves from the conquered, or ceded territory. What is here said by Mr. Blackstone, cannot, therefore, be applicable to any colony, which was settled by English emigrants, after the Indian natives had ceded, or

* Not having any history of either of those colonies to refer to, perhaps I may be mistaken as to what is said respecting the latter.

+ Spavin's Puffendorf Vol. II. p. 342.

++ Grotius de Jure Belli et pacis, lib. 1. c. 3, Sec. 12.

withdrawn themselves from, the territory, however applicable it may be to New-York, where the Dutch settlers remained, after they were conquered, and after the perpetual right of governing them as a people, was ceded by the treaty of Breda before mentioned.

This distinction between the English emigrants, and the Indian natives, being once understood, we shall be able to apply to the former, what Grotius says upon this subject, viz. "When a people, by one consent, go to form colonies, it is the original of a new and independent people; for they are not sent out to be slaves, but to enjoy equal privileges and freedom."* This sentiment he adopts from Thucydides, who, speaking of the second colony sent by the Corinthians to Epidamnus, says, they ordered public notice to be given, that such as were willing to go thither, should enjoy the same rights and privileges as those who staid at home; which corresponds precisely with the declaration contained in Queen Elizabeth's charter to Sir Walter Raleigh, bearing date March 25, 1584, whereby she promises and engages that for the purpose of "uniting in more perfect league and amity such lands and countries as the patentees should settle with the realms of England and Ireland, and for the better encouragement of those who would engage in the enterprize, the said countries so to be possessed and inhabited, should from thenceforth be in allegiance and protection of her, her heirs and successors; and further grants to the said Sir Walter Raleigh, his, heirs and assigns, and to every other person or persons, to their and every of their heirs, that they and every of them that should thereafter be inhabiting in the said lands, countries, and territories, should and might have and enjoy all the privileges of free denizens, or persons native of England."+ The like engagements and stipulations were contained in all the successive charters granted by King James, to the colony of Virginia;

from whence it seems probable that the charters of all the other colonies contained the same. If this were the case, we may, without recurring to the authority of the writers on the law of

* Grotius de Jure Belli et pacis, lib. 2, c. 9, Sec. 10. + Stith's History of Virginia, p. 4, 8.

nations, decide upon the ground of compact alone, that the English emigrants who came out to settle in America, did bring with them all the rights and privileges of free natives of England;

and, consequently, did bring with them that portion of the laws of the mother country, which was necessary to the conservation and protection of those rights. A people about to establish themselves in a new country, remote from the parent state, would equally stand in need of some municipal laws, and want leisure, and experience to form a code adapted to their situation and circumstances. The municipal laws of the parent state being better known to them, than those of any other nation, a recurrence to them would naturally be had, for the decision of all questions of right and wrong, which should arise among them, until leisure and experience should enable them to make laws better adapted to their own peculiar situation. The laws of the parent state would from this circumstance acquire a tacit authority, and reception in all cases to which they were applicable. Of this applicability, the colonists themselves could be the only competent judges; the grant of a legislature of it's own, to each colony, was a full recognition of this principle, on the part of the crown; and sanctioned the exercise of the right, thereby recognized, on all future occasions.

II. Let us now enquire, what part of the laws of the mother country might be deemed applicable to the situation of the colonies, respectively; and as such adopted by them severally.

I shall endeavour to consider this question, first, in a strictly legal point of view; secondly, in a more general, and political light; and lastly, I shall examine the conduct of the colonies, respectively, in the practical exercise of the right before spoken of;

viz. of judging for themselves what parts of the laws of the mother country were applicable, or inapplicable, to their respective situations and circumstances.

1. It seems to be generally understood, that all the colonies were inhibited by the terms of their several charters, and provincial constitutions, from passing any act derogatory from the sovereignty and supremacy of the crown of England, as the head

of the nation; and it was further provided by their charters, that all the laws which they should make should conform, as nearly as might be, to the laws and statutes of England, and not be repugnant thereto.

As, according to strict legal construction, all the laws and statutes of England in force at the time of their migration, might be considered as potentially existing in the colonies, so might they be regarded as actually existing there, whenever co-relative subjects occurred, upon which they could operate; except so far, and so far only, as their several charters might have permitted a departure from this general principle. The colonies under this construction, might be compared to corporations within the realm of England, many of which have power to make bye-laws, for the regulation of their own internal police; but in so doing, are bound to conform to the general laws of the realm, which are in all cases paramount to their own local institutions.

But this strict construction, however applicable to domestic corporations within the realm, where the administration of justice in a regular course was already established in courts of the most extensive jurisdiction; and where any defects in the existing laws of the realm, must be supposed to be subject to the immediate observation of the supreme legislature of the nation, by whom, if expedient, they could be immediately remedied; this construction, I say, must have been perfectly inapplicable to the circumstances of infant and remote colonies, surrounded by hostile savage nations, and equally destitute of support from the crown, as the supreme executive, for aid, or authority to repel their aggressions, and incursions; and of the means of application to the judicial courts of the realm for the redress of private injuries, or the punishment of such as were of a public nature: and not less destitute of the means of application to the national legislature for the remedy of such inconveniences of a public nature, as must continually have manifested themselves, under such circumstances. Some of the first charters, indeed, seem to have been intended to constitute a body politic, or trading company within the kingdom, rather than to establish foreign governments, beyond it's limits; to which circumstance we may ascribe

the omission of those more general and extensive powers contained in some subsequent charters. These omissions the colonists themselves endeavoured to supply by voluntary consent and agreement among themselves, as was done in Massachusetts in the election of a representative body to assist in making laws*;

an innovation, which was not confined to that colony, but, which was acquiesced in, and even sanctioned by the crown, in it's more recent charters, and provincial establishments. The highest act of sovereign authority likewise became necessary to be exercised upon criminals, in the privation of life, concerning which the first Massachusetts charter made no mention: but the government of that colony undertook to inflict capital punishments without recourse to the crown, for additional powers; without which, such a conduct was in strictness murder, in all concerned. In the same manner did they supply a defect of authority to erect judicatories for the probate of wills; to constitute courts of admiralty jurisdiction; to impose taxes; and to create towns, and other bodies corporate,+ Although what is here said relates only to the colony of Massachusetts, there is reason to believe that a similar conduct was observed in the other New-England colonies, and perhaps in all those which were settled about the same time.

In examining this question, we must, therefore, abandon the ground of strict, legal, technical construction; since upon that ground the colonies must either have been swallowed in the vortex of anarchy, or have expired under the peine forte et dure of submission to rigid, and impracticable rules.

2. I shall, therefore, now proceed to consider this part of the question under the more liberal light of general policy.

We must here recollect, that the laws of England arc divided into two distinct classes; the unwritten, and the written law:

the former consisting of ancient, immemorial, general rules,

* According to Governor Hutchinson, all the colonies before the restoration of Charles the Second, except Maryland, settled a model of government for themselves. History of Massachusetts, Vol. I, 92. A different policy was adopted after the restoration. Ibid.

+ Minot's History of Massachusetts, page 20.

maxims, and usages; the latter of written statutes, or acts of parliament, from time to time made in affirmance, or for the amendment, of the ancient unwritten law; or to remedy some defect, mischief, or inconvenience therein; or finally, to repeal and annul it, altogether. Consequently, the common, or unwritten law must have been in a state of continual change, from the first institution of parliaments, in the thirteenth century, to the present time; a period of more than five hundred years; two centuries whereof have elapsed since the first migrations were made to America, under the authority of charters granted by the crown of England; though not quite half a century passed over, between the establishment of the colony of Georgia, and the declaration of independence.

The ancient, immemorial, unwritten law of England, may be divided into the jus commune, common law, or folk-right, of which the ancient English were so tenacious*, and which they struggled so hard to maintain under the first princes of the Norman line: which subsequent princes so frequently promised to keep and restore, as the most popular act they could do, when pressed by foreign emergencies, or domestic discontents, and which depended solely upon custom; which carries this internal evidence of freedom along with it, that it was probably introduced by the voluntary consent of the people.+ And, secondly, the jura coronae, or prerogatives of the crown, as contradistinguished from the rights and privileges of the people: the foundation of which could only be discovered in many respects, to rest upon immemorial usurpations, exactions, and oppressions, generated by feudal tyranny, and enforced by irresistible military authority. From these two copious, and opposite springs are derived all those rules and maxims, which constitute the ground and foundation of the common law, generally so called. And it is in the admixture of these opposite characters and principles, that we discover, according as the scale of liberty, or prerogative has preponderated, a greater or less proportion of the one, or the other, in every subordinate rule and maxim, which, together, compose the whole body of the English common law.

* See Blackstone's Commentaries, Vol. I. p. 65, 66, 67. + 1 Blackstone's Commentaries, 74.

The jus commune, or folk-right, above-mentioned, had for its object, the rights of persons; comprehending the rules, maxims, and usages adopted to ensure the legal and uninterrupted enjoyment of a man's life, his limbs, his body, his health, and his reputation; with the power of locomotion, or changing his situation, or moving to whatever place his own inclination may direct; and generally, of doing every thing that his own disposition might prompt, or suggest to him to do, that is not attended with injury to any other, or to the society at large, without imprisonment, molestation or restraint; and lastly, the free use, enjoyment, and disposal, of all his lawful acquisitions, without any control or diminution. These being the rights and privileges which were expressly guaranteed by the royal charters, there can be no reason to doubt that it was the intention of the colonists to adopt them, in all cases where they might be found applicable to their new condition. To judge of this applicability, time, and experience were both requisite; since it might happen that a rule which might have been highly beneficial and practicable in the mother country, might from local circumstances, or other considerations, be deemed inexpedient, or impracticable, in an infant colony. Thus we find that in Massachusetts they very soon disregarded that ancient rule of the common law, which constitutes the eldest son sole heir to his father, and divided the estate, whether personal, or real, according to circumstances, among all the branches of the family*:

A departure from the principles of the feudal law, of the propriety of which few Americans at this day entertain any doubt, yet certainly not authorised by the terms of their charter. Local circumstances, likewise, gave an early rise to a less justifiable departure from the principles of the common law in some of the colonies, in the establishment of slavery; a measure not to be reconciled either to the principles of the law of nature, nor even to the most arbitrary establishments in the English government at that period; absolute slavery, if it ever had existence in England, having been abolished long before. These instances shew that the colonists in judging of the applicability of the laws of the mother country to their own situations and circumstances, did not confine themselves to very strict, and narrow limits.

* Hutch. Hist. of Mass. Vol. I. p 393, 394

The jura corona, or lex prerogativa as denominated by Sir Matthew Hale, may be divided into two heads. First, those prerogatives which appertained strictly to the person of the prince; and secondly, such as regarded him in his political capacity, only;

as the supreme head and ruler of the nation. Though all these which were not expressly given up by the crown in it's charters, might, in strictness, be considered as potentially existing in every part of the nation, yet the exercise, or violation, of them, or a great part of them, being perfectly impracticable in remote colonies, such parts may well be considered as in abeyance, or perfectly dormant, there. All those prerogatives which were annexed to the person of the prince, as an individual, in whose case, that was law, which was not law in any case of a subject,* must have been of this latter description; since the colonies could have nothing to do with them, in the internal administration of their affairs .... On the other hand those parts of the jura coronae which regard the prince, in his political capacity, only; that is, as the chief magistrate of the nation; the representative of his people;

the administrator of the laws, and general conservator of the peace of his dominions, were applicable, or inapplicable, I apprehend, as circumstances might direct. Those laws, for example, which regard the king as supreme head of the national church, and punished non-conformity to its doctrines, and discipline, could not have been deemed applicable to the circumstances of a colony in which universal toleration in matters of religion was established by charter; and still less, perhaps, where the established, or prevailing religion of the colony differed from the church of England both in discipline, and in doctrine. Neither can we suppose the laws which regarded the king as supreme lord of the soil of his dominions, and those who held under him as military vassals, would be applicable to the condition of colonists who held their lands in free and common socage: yet the military tenures were not abolished in England, till near a century after the first charters granted to the colonies; and consequently that part of the common law which was founded upon the nature of these tenures remained in full force there, whilst it would have been perfectly absurd to suppose it could have been at all applicable to the colonies. Upon this ground we may infer that all the rules

* Finch. 85. Blacks. Com 239.

and maxims of the common law which sprung from that source, were equally inapplicable to the colonies; for cessante ratione, cessat et ipsa lex.

As to crimes and misdemeanors, no doubt the laws relating to such are mala in se, as murder, mayhem, and other offences which are universally admitted to be against the laws of God, and of nature, might have been deemed applicable to the situation of each colony; since the prevention and punishment of such offences are among the first objects of civil polity. But this was the case only with regard to such offences as might be strictly termed mala in se; and, as such, by the general consent of all civilized nations, admitted to be against the laws of God. Therefore the laws against heresy, witchcraft, sorcery, apostacy, and blasphemy, which, in some of the colonies, were regarded as among the most crying sins against God, and as such, punished with more severity than murder itself, could not have been deemed applicable, as was before observed, to those colonies, where universal toleration, in matters of religion, was established by charter. And as to that class of offences which are denominated mala prohibita, as not being contrary either to the laws of God, or to those of nature, but merely prohibited by the positive laws of society; the laws by which they were defined, restrained, or punished in the mother country, could not be deemed generally applicable to the colonies, because, in some of them there might be no co-relative subject for them to operate upon;

as in the case of non-conformity to the worship of the church of England, before mentioned; which, although an offence in England which was punished with much severity, could not be deemed an offence in a colony, where universal toleration, or a different denomination of religion, was established; however it might continue to be deemed an offence in those colonies where the church of England was established as the religion of the colony. To this head we may likewise refer the whole class of offences against the prince, as an individual; whose personal prerogatives could be in no danger of violation in a colony, situated at the distance of a thousand leagues from his kingdom and residence. And many of those which were attached to the kingly office, must have been equally out of the reach of invasion, or attack,

from so remote and feeble a quarter; and consequently could not have been deemed applicable to the situation and circumstances of colonies, of that description.

Nor must the motives and intentions of the colonists, in their respective migrations, be disregarded in an inquiry of this nature. Such of them, as allured by the hopes or prospects of immense riches, or a comfortable subsistence, at least, were induced by such motives, only, to leave their native country; to which, perhaps, they looked forward to return, may well be supposed to retain for its government and laws the same filial attachment as they felt for their natale solum, and would, consequently, conform as near as possible both in doctrine and in practice to all the institutions of the mother country. On the contrary, those who fled from what they accounted tyranny, both in church and state, and quitted their native country as a prison, in which they were exposed to all the terrors of persecution; preferring to it an asylum in the howling wilderness, where they might establish and enjoy freedom in a remote and unknown quarter of the globe, must have carried with them prejudices against the laws and government of the parent state, which would induce a general rejection of all such as were inimical to those principles, which prompted them to migrate. And as two strait lines, which diverge from each other at the same point, can never after meet, or become parallel, so the institutions of two countries, founded upon such discordant principles, could never after be assimilated to each other.

In addition to these sources of endless variety, and disagreement, between the civil institutions of the several colonies, there remain two others, equally copious, which have not yet been noticed, or but very slightly. The first, arising from the changes introduced by the English statute law, or acts of parliament made between the periods, when the several colonies were respectively settled; the whole amounting to somewhat more than one hundred and fifty years*. Now it was held, that those

* Queen Elizabeth's patent to Sir Walter Raleigh, bore date March 25, 1584. That of George the Second, for the settlement of Georgia, bears date June 9, 1732, a period of one hundred and fifty-two years.

such an inquiry; from whence we may possibly be made sensible how fruitless would be the labour of a further search after an uniform system of law in the British colonies.

The legislature of Virginia, the most ancient of the British colonies, was constituted by letters patent of March the 9th, 1607, in the fourth year of king James the first; the first charter granted by queen Elizabeth, to Sir Walter Raleigh, bore date March 25th, 1584, about three and twenty years before: it is not of much consequence from which of these periods we date the obligation of the laws of England. They seem to have been adopted by consent of the settlers, which might easily enough be done, whilst they were few, and living altogether. Of such adoption, however, we have no other proof, than their practice till the year 1661*, when they were expressly adopted by an act of the assembly, which declares, "that they had endeavoured, in all things, as near as the capacity and constitution of the country would admit, to adhere to those excellent and often refined laws of England, to which they profess and acknowledge all reverence and obedience; and that the laws made by them are intended by them but as brief memorials of that which the capacity of the courts is utterly unable to collect out of its vast volumes, though sometimes perhaps, for the difference of condition, varying in small things."+ The several charters of queen Elizabeth and king James, stipulated that lands in Virginia should be held of the crown in free and common socage.++

The first acts to be found in the colonial code of Virginia provide for building churches, appointing vestries, and laying out glebes in every parish. And by an act dated in 1643, it is provided, that for the preservation of purity and unity of doctrine, and discipline in the church, and the right administration of the sacraments, no minister should be admitted to officiate in Virginia, without producing to the governor a testimonial of

* Jefferson's Notes on Virginia, 240.

+ Laws of Virginia, 1661, c. 1 Edi. 1769.

++ Jefferson's Notes, 197.

his ordination from some bishop in England, and subscribing to be conformable to the orders and constitutions of the church of England, and the laws there established.* All persons not having a lawful excuse, were obliged to attend their parish church every Sunday, under penalty of fifty pounds of tobacco; "but quakers and other recusants, who, out of non-conformity to the church, totally absented themselves, were made liable to such fines and punishments as by stat. 23, Eliza. were imposed upon them; being for every month's absence, twenty pounds sterling; and if they forbore a twelvemonth, then to give security for their good behaviour, besides payment of the before-mentioned fine. And all quakers, for assembling in unlawful assemblies, and conventicles, were farther subject to a fine of two hundred pounds of tobacco, for each offence."+ The like penalty was extended two years after to any other separatist whatsoever, and the third offence, made the offender liable to banishment.++ Any person entertaining a quaker to teach, or preach, was subject to a fine of 5000 pounds of tobacco, and any justice of the peace, or other officer, neglecting the duties prescribed thereby for suppressing quakers, was subjected, likewise, to a penalty: and any master of a vessel bringing a quaker into the colony, was moreover liable to the penalty of 5000 pounds of tobacco.

Here then, we find not only the common law and statutes of England, so far as they were applicable to the situation of the colony, but also the hierarchy of the church of England, in it's full vigour, established and adopted in Virginia.

But this general adoption of the laws of England was probably confined to the colony of Virginia, which, even to the period when the revolution commenced, was distinguished for it's loyalty, beyond any other of the plantations. The New-England colonies owed their establishment to that spirit of independency, which afterwards shone forth there, in it's full lustre, and received new accession from the aspiring character of those, who being discontented with the established church, and with regal go

* Laws of Virginia, Ed. 1769. p. 3. + Purvis's collection of the Laws of Virginia, p. 6.

++ Ibid p. 115, 116.

vernment, sought for freedom amidst those savage desarts*. But, even in Virginia, we find the distinction made, between acts of parliament antecedent to their settlement, and such as were subsequent thereto. Many of the latter were from time to time, either expressly declared to be in force in the colony, or, were introduced into the colonial code, in form of acts of the

general assembly. The statute of 7 and 8 of William the third, which declares that "the solemn affirmation of quakers shall be accepted instead of an oath," for so much thereof as relates to such affirmation, was, by an act of assembly, passed in the year, 1705, declared to be in force in Virginia; the statute of 3 W. and M. c. 14. For relief of creditors against fraudulent devises, was in like manner declared to be in force in Virginia, by an act passed in the year 1726, and re-enacted in the year. 1748. The statutes of limitations, 32 H. 8. c. 2. and 21 Ja. 1. c. 16. were enacted in the year 1710, with alterations in the former. The statutes of 21 Ja. 1. c. 27, to prevent the destroying of bastard children; and c. 24, concerning persons dying in execution, were likewise enacted about the same time. So was a part of the statute 16, and 17. Car. 2. c. 5, for preventing delays of execution by writ of audita querela; as also several clauses of the statute for preventing frauds and perjuries, 29 Car. 2. c. 3, whilst other parts of the same statute were either entirely omitted, or materially changed; as in the case of a will of lands: the statute requires 3 or 4 witnesses; the act of the Virginia assembly requires only two.+ Many other instances, if necessary, could be adduced to the like effect.

The Massachusetts colony may be considered as the parent of the other colonies of New-England; there being no importation of planters from England to any part of the continent northward of Maryland, except to Massachusetts, for more than fifty years after the colony began.++ The first settlement at-

* Hume's History of England, Vol. IV. 334. Hutch. Hist. of Massachusetts, Vol. I. p 11, 12. Minot's Hist. of Mass. Vol. I. p. 14. Belkn. Hist. of New-Hampshire, Vol. I. p. 67. Peters' Hist. of Connecticut, p. 7.

+ Laws of Virginia, Ed. 1733, p. 163, 156, 259, 260, 359, 360, 361, 363, 364, 385, 446, 448. Ed. 1769, p. 160, &c.

++ Hutch. Hist. of Mass. Vol. 1. preface.

tempted in the year 1607, (the same in which the charter of James the first to Virginia bears date) soon failed.

The colony of New-Plymouth, which may be regarded as the most ancient establishment in New-England, owed it's existence to that bigotry and persecution which prevailed at that time among Christians of every sect and denomination*. The adventurers procured a patent from the Virginia - company in 1620, and, eight years after, a charter was obtained from the crown: the settlement having been previously effected. This charter, according to governor Hutchinson, was intended to constitute a corporation in England, like that of the East India company; but on the proposal of several gentlemen of figure and estate, who were dissatisfied with the arbitrary proceedings both in church and state, and pleased themselves with the prospect of the enjoyment of liberty in both, in America, it was resolved the succeeding year, by the general consent of the company, that the government and patent should be settled in New-England.+ In 1630, they established rules for proceeding in all civil actions, and instituted subordinate powers for punishing offenders. In civil actions, equity, according to the circumstances of the case, seems to have been their rule of determining; the judges had recourse to no authority but common reason and understanding.++ In 1634, they began to think about a body of laws suited to the circumstances of the colony, civil and religious;

and in the year 1648, (the same in which the regal government was subverted in England) the whole collected together, were ratified by the general court, and then first printed).¦¦ The principal characters in Massachusetts during this period were the intimate friends of the leading members of parliament, Pym, Hampden, &c. and whilst Cromwell was at the head of affairs, he shewed them all the indulgence they desired; from 1640 to 1660, they approached very near to an independent commonwealth.

* Hutch. Hist. of Mass. Vol. I. preface, p. 11, 12.

+ Ibid. 19, 20. Minot's Hist. of Mass. 14. Belknap's Hist. of New-Hampshire, Vol. I. 67.

++ Hutchinson, Vol. I. p. 384. ¦¦ Ibid. 385, 386.

In the system of laws and government which they established they departed from their charter, and instead of making the laws of England the ground work of their code, they preferred the laws of Moses*. In that branch of law more especially, which is distinguished by the name of crown law, they professed to have no regard to the rules of the common law of England.+ It seems to have been the general opinion that acts of parliament had no other force than what they derived from acts made by the general court to establish, or confirm them.++ High treason was not mentioned,# conspiracy to invade their own commonwealth, or any treacherous perfidious attempt to alter and subvert fundamentally the frame of their polity and government, was made capital.¦¦ Murder, sodomy, witchcraft, arson, and rape of a child under ten years of age, were the only crimes made capital in the colony, which were capital in England. They made no distinction between murder and manslaughter, and the statutes which allowed, or denied the benefit of clergy were disregarded. The worship of any other God besides the Lord God, was capital. Governor Hutchinson doubts whether a Roman catholic for the adoration of the host, might not have come within that law. Blasphemy, man-stealing, adultery with a married woman, wilful perjury in certain cases, cursing, or smiting a parent by a child above the age of sixteen years, except in one or two particular cases, were all capital offences. A stubborn and rebellious son, according to Deuteronomy c. 21. upon conviction was also to suffer death. There were several trials under this law. Rape was left to the court to punish with death or other grievous punishment at discretion. Several offences were capital upon a second conviction; as the returning of a Romish priest, or a quaker, after banishment upon the first conviction: The denial of either of the books of the old and new testament, to be the written and infallible word of God, was either banishment, or death, for the second offence, at the discretion of the court. Burglary and theft in a house, or

* Hutchinson, Vol. II. p. 10, 11. + Ibid. Vol. I. p. 387. ++ Ibid. Vol. II. p. 12.

$ In 1678, when complaints were made against the colony, in England, it was made capital. Ibid Vol. I. p. 390. ¦¦ Ibid. Vol. I. p. 390.

field, on the Lord's day, were capital upon a third conviction;

larceny, or theft was punishable by fine or whipping, and restitution of treble the value; fornication, by enjoining marriage, by fine, or corporal punishment. Common fowlers, tobacco-takers, and idlers, the constables were required to present to the next magistrate; and the select men of every town were required to oversee the families: to distribute the children into classes, and to take care that they were employed in spinning and other labour according to their age and condition. Contempt of authority was punished with great severity, by fine, imprisonment, or corporal punishment. Lesser offences were punished at the discretion of the court*. Such are the outlines of their penal code: it would be mispending time to attempt to shew the numerous departures therein, from the principles both of the common, and statute law of England.

Nor were many of the civil regulations less dissimilar. Marriages from the first settlement of the colony were celebrated by magistrates, and not by clergymen. At the revolution they were solemnized by the clergy. A man who struck his wile, or a woman her husband, was liable to a penalty of ten pounds, or corporal punishment. In testamentary causes they at first so far allowed the civil law, as to consider real estates, as mere bona, and did not confine themselves to any rules of distribution in England. They considered the family and estate in all their circumstances, as was before mentioned, and sometimes assigned a greater portion to one branch than another; and sometimes they settled all upon the widow; executors or administrators were not held, as at the common law, to prefer a debt due by judgement, or bond, to a simple contract debt; fee-simple estates descended to every child; but estates tail to the eldest son, or other heir at common law. Traitors and felons might dispose of their estates, real and personal, by will, after sentence; and if they died intestate, distribution was made as in other cases. No free inhabitant of any town could sell his lands therein, but to some other free inhabitant of the same town; unless the town gave consent, or re-

* Hutchinson's History of Mass. Vol. I. p. 388, to 392.

fused to give what others offered without fraud; which was agreeable to the law of Moses, which forbad the alienation of lands from one tribe to another. The clergy were at all times exempted from taxes, on their persons, or estates, under their own improvement*. Nor was their ecclesiastical polity at less variance with the laws and statutes of England, which regard the king as the supreme head of the church, and make it penal not to conform to the doctrine and discipline of that church. Upon their removal they supposed their relation both to the civil and ecclesiastical government, except so far as a special reserve was made by their charter, was at an end; and that they had a right to form such new model of both, as best pleased them.+ Accordingly they established an ecclesiastical polity of their own, totally differing from the mother country, it being one of the principles upon which their platform, or church-government was formed, "that there is no jurisdiction to which particular churches are, or ought to be subject, by way of authoritative censure, nor any other church power, extrinsical to such churches, which they ought to depend upon any other sort of men for the exercise of."++ In general the ordination of ministers was by imposition of the hands of their brethren in the ministry; but some churches called for the aid of no ministers of other churches, but ordained their ministers by the imposition of the hands of some of their own brethern.$ They laid aside the fasts and feasts, as well as the doctrine and discipline of the church of England; yet they appointed days of fasting and thanksgiving occasionally, and any person absenting himself from public worship on those days, was liable to a fine: ¦¦ and non-conformity was attended with the deprivation of more civil privileges than in England**. This intolerant spirit occasioned complaints to be preferred against the colony, after the restoration, not only by episcopalians, but by baptists, quakers, and other sectarists, which, together with other reasons, produced the abrogation of their charter, by a decree of

* Hutchinson's History Mass. Vol. I. p. 392, to 397. + Ibid. 369. ++ Ibid. 370, 371. $ Ibid. 374. ¦¦ ibid. 379.

** Ibid. 380.

the high court of chancery in England, in the year 1684. A new charter was obtained in 1691, upwards of sixty years after the date of the former, and seventy years from the first settlement of the colony of New-Plymouth, and near half a century from the period when a system of laws the most discordant to those of the mother country had been established.* In the mean time the laws of England had undergone many very material alterations, and the system of government had twice been wholly changed. The new charter contained nothing of an ecclesiastical constitution. Liberty of conscience was allowed to all except papists.+ On the publication of the new charter, there was room to question what was the law in civil and criminal matters, and how far the common law and what statutes took place. The general court soon after passed an act declaring that all the laws of the colony of Massachusetts, and the colony of New-Plymouth, not being repugnant to the laws of England, nor inconsistent with the charter, should be in force in the respective colonies to the 10th of November, 1692, except where other provision should be made by act of assembly.++ Instead of committing to a few select and able men, the duty of preparing, and digesting a complete code, or system of laws, upon a preconcerted plan, the whole of which each person should have kept in view: which after being submitted to, and approved by the general assembly, might have been sent to England, to be finally ratified there, by the crown;

it was proposed that the members of the general court should, during the recess, consider of such laws as were necessary to be established. This improvident step according to governor Hutchinson, produced consequences by which the people of the province were ever after sufferers; "the construction of many laws," he tells us, "has been doubtful and varying, it being impossible to reconcile the several parts to any general principle of law whatever." Many of the subsequent acts of assembly were passed from time to time, one after another, as they happened to be brought in; and when sent to England for allowance, some were disapproved; others, which depended upon, or had some connexion with those which were disapprov-

* Hutch. Hist. Mass. Vol. II. p. 11,12. ++ Ibid. 20, 21.

+ Ibid, 17.

ed, were allowed*. The legislature consisting of many of the same persons who had composed the same body under the old charter, the same spirit prevailed in most of the laws which were passed, as in the former code: many of them were consequently disallowed; others were approved, among which is enumerated an act for punishing criminal offences, in many parts mitigating the penalties at common law; as also an act for the settlement of intestates' estates, which continued in force until the period when Hutchinson wrote his history; and is, not improbably, the law of the land at this day. By this act such estates were to be divided among all the children, giving to the eldest son a double portion; and where there were no children, the whole was to go to the next of kin to the intestate. This act was variously interpreted, the courts, where there were no children, at first adjudging that the estate should go to the heir at common law; but later judgments have assigned it to the half blood, to the father, and also to the mother. Notwithstanding which general entails were adjudged not to be partible.+

A body of people receding from the established government and religion of a country can not, as was before remarked, be supposed to have carried with them any great affection for it's laws. To this cause we must attribute that immediate departure from the conditions of their first charter, which prohibited the making any laws repugnant to those of England. A strict compliance with this condition would require the aid of learned counsel, whose professional pursuits might enable them to point out the conformity required by the charter. Of such counsel the general court are said to have acknowledged the want.++ Under such circumstances, had there been every disposition to adhere strictly to the terms of their charter, it would have been impossible. A single instance will shew what extensive consequences flowed from these causes. By the charter of Massachusetts, (which agrees perfectly with the charters of the other colonies, in this respect,) it was stipulated that the colonists should hold their lands in free and common socage, as of the manor of East-

* Hutch. h. Mass. Vol. II. p. 63.

+ Ibid. 66.

++ Minots h. Mass, p. 23.

Greenwich in the county of Kent. In Massachusetts this was interpreted to include all the properties and customs of gavel-kind; one of which is, that lands are partible among all the sons;

and another, that they are not subject to forfeiture for treason or felony, according to the maxim, the father to the bough, the son to the plough.* This Interpretation gave a correspondent stamp to their laws, before noticed. In Virginia that part of the charter was interpreted to establish the common law rule of descents, in favour of the eldest son, or next collateral kinsman of the whole blood, in exclusion of all others in equal degree; and the law of forfeiture, in cases of treason or felony, was adopted in it's fullest latitude. Two ships sailing from the equator to the opposite poles would scarcely pursue more different courses, or arrive at more opposite points. If such different interpretations could be made where the text was so short, familiar, and explicit, what irreconcileable variances might we not expect in the construction of the numerous, and often discordant dogmas, contained in the vast volumes of common law reports, and statutory provisions?

The colonies of Connecticut and New-Hampshire, which, according to governor Hutchinson, grew out of Massachusetts, severally adopted institutions, both civil and religious, which bore a great conformity to those of Massachusetts. Perhaps the spirit of civil independence run higher in Connecticut, even than in Massachusetts; and that of religious intolerance towards all who differed from them in doctrine, or in discipline, was certainly equal in both.+ Toleration was preached against as a sin in rulers, which would bring down the judgments of heaven upon the land.++ This spirit of intolerance in Massachusetts produced the settlement of Rhode-Island, where religious freedom seems first to have erected her standard, under the protection of the charter granted by Charles the second, in the fourteenth year of his reign, A. D. 1662, which declared,

* Hutch. h. Mass. Vol. I. 395.

+ Belknap's Hist. New-Hampshire, Vol. I. p. 69, 75,179. Peters's Hist. of Con. p. 63, 82. He tells us it is a ruled case there, that no law, or statute of England is in force there, till formally passed by the general assembly. Ibid, 83.

++ Hutch. Vol. I. 75. Belknap, Vol. I. 84. Peters, 64, 65, 67.

that no person within that colony, at any time thereafter, should be any wise molested, punished, disquieted, or called in question for any differences of opinion in matters of religion, who do not actually disturb the civil peace of the colony. Universal toleration was not long after established in Pennsylvania, and there flourished more than in any other country. Popery, the abomination of the religious bigots of New England, seems to have been rather favoured, than discouraged in Maryland. In no other colony, except Rhode-Island and Pennsylvania was it tolerated. It is not improbable that in every colony the prevailing sentiments and laws respecting religion, had a corresponding effect upon their civil institutions. Of this Peters mentions a remarkable instance in Connecticut, not many years before the American revolution. A negro was brought to trial before the superior court at Hertford for castrating his master's son: the court could find no law to punish him. The lawyers quoted the English statute against maiming; the court were of opinion that statute did not reach the colony, because it had not been passed in the general assembly*. At length, however, the court had recourse to the vote of the first settlers at New-Haven, viz. that the bible should be their law, till they could make others more suitable to their circumstances. The court were of opinion that vote was in full force, as it had not been revoked; and thereupon tried the negro by the Jewish law, "eye for eye, tooth for tooth;" and he suffered accordingly.+ Mr. Swift, in his system of the laws of Connecticut, tells us, that the English common law had never been considered as more obligatory there, than the Roman laws had been in England. That there is no general rule to ascertain what part of it is binding; that the running the line of distinction is a subject of embarrassment to the courts; and that it has no other foundation there, than the voluntary reception of it by the general (implied) consent of the people, (in particular cases, I presume.) That the first settlers there instead of considering it to be the basis of their jurisprudence, and in all cases

* Castration was mayhem at the common law, and by that law might have been punished as felony, 3. Inst. 62. It would seem that the court neither considered the common law nor the statute of Mayhem, as in force in Connecticut. + History of Connecticut, 83.

binding, have only considered it as auxiliary to their statutes .... That a consequence of this doctrine has been, the introduction of many new rules and principles, which have greatly improved the legal system of that state; from whence he adduces a second branch of what he stiles the common law of the state, founded upon the adjudications of the courts, in all cases of defect of the common law not supplied by statute*. In Virginia, it would be a violation of the constitution for the courts to undertake to supply all defects of the common law not already supplied by statute. That is the exclusive province of the legislature.

From this specimen, my readers will readily perceive that it would require the talents of an Alfred to harmonize and digest into one system such opposite, discordant, and conflicting municipal institutions, as composed the codes of the several colonies at the period of the revolution; united with the coercive arm of the Norman tyrant to enforce obedience to it, when digested. In vain then should we attempt, by any general theory, to establish an uniform authority and obligation in the common law of England, over the American colonies, at any period between the first migrations to this country, and that epoch, which annihilated the sovereignty of the crown of England over them. I shall, therefore, proceed to consider,

3. Thirdly; what part of the laws of England were abrogated by the revolution, or retained by the several states, when they became sovereign, and independent republics.

And here we may premise, that by the rejection of the sovereignty of the crown of England, not only all the laws of that country by which the dependence of the colonies was secured, but the whole lex prerogativa (or Jura Coronae before mentioned) so far as respected the person of the sovereign and his prerogatives as an individual, was utterly abolished: and, that so far as respected the kingly office, and government, it was either modified, abridged, or annulled, according to the several constitutions and laws of the states, respectively: consequently, that every

* Swift's System of the Laws of Connecticut, Vol. I. 40 to 47.

rule of the common law, and every statute of England, founded on the nature of regal government, in derogation of the natural and unalienable rights of mankind; or, inconsistent with the nature and principles of democratic governments, were absolutely abrogated, repealed, and annulled, by the establishment of such a form of government in the states, respectively. This is a natural and necessary consequence of the revolution, and the correspondent changes in the nature of the governments, unless we could suppose that the laws of England, like those of the Almighty Ruler of the universe, carry with them an intrinsic moral obligation upon all mankind. A supposition too gross and absurd to require refutation.

In like manner, all other parts of the common law and statutes of England, which, from their inapplicability, had not been brought into use and practice during the existence of the colonial governments, must, from the period of their dissolution, be regarded not only as obsolete, but as incapable of revival, except by constitutional, or legislative authority. For they no longer possessed even a potential existence, (as being the laws of the British nation, and as such, extending, in theoretical strictness, to the remotest part of the empire,) because the connexion, upon which this theoretical conclusion might have been founded, was entirely at an end: and having never obtained any authority from usage, and custom, they were destitute of every foundation upon which any supposed obligation could be built .... This is a regular consequence of that undisputed right which every free state possesses, of being governed by its own laws .... And as all laws are either written; or acquire their force and obligation by long usage and custom, which imply a tacit consent*; it follows, that where these evidences are wanting, there can be no obligation in any supposed law.

Another regular consequence of the revolution was this:

when the American states declared themselves independent of

* Sine scripto jus venit, quod usus approbavit; nam diuturni mores consensu utentium comprobati, legem imitantur. Just. Inst. Lib. 1, Fit. 2, 8, 9. The unwritten law is that, which usage has approved: for all customs, which are established by the consent of those who use them, obtain the force of a law. Harris's Justinian, 10.

the crown of Great-Britain, each state from that moment became sovereign, and independent, not only of Great-Britain, but of all other powers, whatsoever. Each had it's own separate constitution and laws, which could not, in any manner, be affected or controlled by the laws, or constitutions of any other. From that moment there was no common law amongst them but the general law of nations, to which all civilized nations conform. And as no law could thereafter be imposed upon the people of any state, but by the legislature thereof, so no law could be obligatory in one state, merely because it was obligatory in another. And how much soever their municipal institutions might agree, one with another, yet as it was in the power of their legislatures, respectively, to alter the whole, or any part of them, whenever they should think proper, therefore, such coincidence by no means established a common rule amongst them; because, as was before observed, the establishment of a law within the jurisdiction of one state, gave it no authority within the jurisdiction of any other. From hence it follows, that the adoption of the common law, or statutes of England, in one state, or in several, or even in all, although it might produce a general conformity in their municipal codes, yet as such adoption was the separate act of each state, it could not operate so as to give to those laws a sanction superior, to any other laws of the states, respectively;

inasmuch as each state would still have retained the power of changing, or rejecting them, whenever it should think proper:

and much less, could the adoption of them under various modifications, limitations, and restrictions, (as was actually the case,) create such a superior sanction, as thereafter to render them paramount, not only to the legislative authority, but even to the constitutions, of the respective states.

These things being premised, we shall now proceed to enquire what was actually done by the several states, in regard to the subject, here spoken of.

The constitution of Massachusetts*, declares, that, "the people of that commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent

* Established, March, 1780.

state; and do, and forever thereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not thereafter, be by them expressly delegated to the United States of America, in congress assembled." .... This is merely a declaration of the law of nations*: and as such, applies equally to every other state in the union, as to the commonwealth of Massachusetts. And though, perhaps, it will be objected, that by the confederation formed between the states, they were, respectively abridged of a very large portion of that sovereignty, which some other nations exercise; yet this objection admits of several answers, viz. First, The articles of confederation, were not agreed upon, nor ratified, till several years after the states became independent.+ Secondly, when agreed upon, and ratified, they contained an express declaration, in conformity to the law of nations,¦¦ that each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not thereby expressly delegated to the United States in congress assembled." .... Thirdly, that no power is therein delegated to congress, whereby that body was authorised to introduce, or to establish the common law, or statutes of England, or of any other country or nation, in the United States, as the general law of the land, therein.

The constitution of Massachusetts further declares, that, "all the laws which had been theretofore adopted, used and approved, in the province, colony, or state of Massachusetts-bay, and usually practised on, in the courts of law, shall still remain and be in full force, until altered, or repealed by the legislature;

such parts only excepted, as are repugnant to the rights, and liberties contained in that constitution." Among those rights we find the following declaration, that, "all power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority whether legislative, executive, or judicial, are their substitutes, and agents, and are, at all times, accountable to them." Again .... That government is instituted for the common good; for

* Vattel, p. 9.

+ They were not finally agreed upon and ratified till the first day of March 1781. ¦¦ Vattel, p. 18.

409

the protection, safety, prosperity, and happiness of the people and not for the profit, honour, or private interest of any one man, family, or class of men." .... And again; that, "the people have a right to require of their law-givers and magistrates an exact, and constant observance of the fundamental principles of the constitution, in the formation and execution of all laws." And further; that, "the liberty of the press, is essential to the security of freedom, in a state; and ought not, therefore, to be restrained in that commonwealth."

These constitutional declarations (among many others of a similar nature, contained, not only in the constitution of Massachusetts, but in those of the far greater part of the states in the union) establish, beyond the reach of doubt, I apprehend, the several points premised, under this head. And here we may remark, in the way, that by these constitutional declarations all the colonial laws, (of whose validity, as being repugnant to the common law, and statutes of England, great doubts had been entertained during the colonial government), were, thenceforth, unquestionably established, how repugnant, soever, they might have been to the common law, or statutes of England, or the conditions of their charter. The adoption of the laws of England, we see was confined to such as had been theretofore adopted, used, and approved, within the colony, and usually practised on, in the courts of law; with an exception as to such parts as were repugnant to the rights and liberties contained in the constitution. It was therefore essential to the force and obligation of any rule of the common law, that it had been before that time actually adopted, used, or approved, in the colony: and further, that it should not be repugnant to the rights and liberties contained in the constitution. Otherwise, although it might be found in every law treatise from Bracton, and Glanville, to Coke, Hale, Hawkins, and Blackstone; or in every reporter from the year-books to the days of Lord Mansfield, it would have no more force in Massachusetts, than an edict of the emperor of China.

But let us now proceed to inquire what other states have done upon this subject.

The constitution of New-York, ordains, and declares, that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New-York, as together did form the law of the said colony on the 19th day of April, 1775, shall be, and continue the law of the land, subject to such alterations and provisions, as the legislature of the state shall, from time to time make, concerning the same. That all such parts thereof as may be construed to establish any particular denomination of Christians, or concerns the allegiance, theretofore yielded to, and the supremacy, sovereignty, government, or prerogatives, claimed or exercised by the king of England or his predecessors, over the colony or its inhabitants, or are repugnant to that constitution, are thereby abrogated, and rejected.

The constitution of New-Jersey, declares, that, the common law of England, as well as so much of the statute law, as had been theretofore practised in that colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in that charter.

The constitution of Delaware, declares, nearly in the same words, that the common law of England, as well as so much of the statute law, as had theretofore been adopted in practice in that state, shall remain in force; unless they shall be altered by a future act of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in that constitution.

The constitution of Maryland declares, that the inhabitants thereof are entitled to the common law of England, and the trial by jury according to the course of that law, and to the benefit of such English statutes as existed, at the time of their first emigration, and which by experience have been found applicable to their local and other circumstances, and of such others as have since been made in England, or Great-Britain, and have been since introduced, used, and practised by the courts, &c. except such as may be altered by acts of convention, or that declaration

of rights, subject to the revision, amendment, or repeal, of the legislature of that state.

The convention of Virginia, declared, that the common law of England, and all statutes or acts of parliament made in aid of the common law, prior to the fourth year of James the first, which are of a general nature, not local to that kingdom, together with the several acts of the colony then in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force, until the same shall be altered by the legislative power of the commonwealth. This has since been done, and at this day, no statute of England, or Great-Britain, as such, has any authority in Virginia, except in one or two special cases, particularly saved by the act of repealing them; and the common law, both in criminal and civil cases, has undergone a most extensive change.

The constitution of South-Carolina, established March 19, 1776, declares, that the resolutions of the late Congresses of that state, and all laws then in force there, and not thereby repealed, shall so continue until altered, or repealed, by the legislature of the state, unless where they are temporary.

The constitutions of the other states, so far as I have had an opportunity of consulting them, are silent on the subject of the adoption of the common law, or statutes of England. But I apprehend, that what I have here selected is sufficient to shew, that in every state, where they have been adopted, they have the force of laws, only, sub graviori lege, like the civil and canon laws, in England: being modified, limited, restrained, repealed, or annulled, by the provisions contained in their several constitutions, bills of rights, legislative codes, and judicial usages, and practice; and in all cases subject to the future amendment, repeal, and control, of the legislatures of the several states, respectively. These modifications, restrictions, and limitations, being different in the different states, according to the difference of their several constitutions and laws, and the different terms of adoption, it would be altogether a hopeless attempt, to endeavour to extract

from such discordant materials, an uniform system of national jurisprudence, were there any grounds in the American constitutions to warrant such an undertaking. Hitherto, I apprehend, we have met with nothing of the kind. It only remains to inquire,

4. How far that portion of the common law and statutes of England, which has been retained by the several states, respectively, has been engrafted upon, or made a part of the constitution of the United States.

It will he remembered, that the object of the several states in the adoption of that instrument, was not the establishment of a general consolidated government, which should swallow up the state sovereignties, and annihilate their several jurisdictions, and powers, as states; but a federal government, with powers limited to certain determinate objects; viz. their intercourse and concerns with foreign nations; and with each other, as separate and independent states; and, as members of the same confederacy:

leaving the administration of their internal, and domestic concerns, to the absolute and uncontrolable jurisdiction of the states, respectively; except in one or two particular instances, specified, and enumerated in the constitution. And because this principle was supposed not to have been expressed with sufficient precision, and certainty, an amendatory article was proposed, adopted, and ratified; whereby it is expressly declared, that, "the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." This article is, indeed, nothing more than an express recognition of the law of nations; for Vattel informs us, "that several sovereign, and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagements*." And with

* Vattel, B. 1, C. 1, Sec. 10.

respect to the construction and interpretation of that article, the great Bacon gives us the following rule: "As exception strengthens the force of a law in cases not excepted; so enumeration weakens it, in cases not enumerated."* Now, the powers prohibited by the constitution to the states, respectively, are all exceptions to powers, which they before enjoyed; the powers granted to congress, are all enumerations of new powers thereby created: the prohibition on the states, operating, therefore, as an exception, strengthens their claim to all powers not excepted:

on the other hand, the grant of powers to the federal government operating only by way of enumeration, weakens it's claim in all cases not enumerated.

These things being premised, I shall take a short survey of the constitution of the United States, with a view to discover, whether that instrument contains any grant of general jurisdiction in common law cases, to the federal government; or prohibits the states from the exercise of such general jurisdiction:

except only, in some few cases, particularly enumerated. For without such grant the federal government cannot exercise such a jurisdiction; and without such prohibition, the states, respectively, cannot be abridged of it.

1. The powers delegated to congress, are not all legislative:

Many of them have been usually supposed to belong to the executive department; such are,

The power of declaring war, granting letters of marque and reprisal, raising and supporting armies, and navies; and borrowing money; none of which contain, or can be presumed to imply, any grant of general jurisdiction in common law cases. The legislative powers of congress, are also determinate, and enumerated, being,

1. To lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence, and welfare of the United States.

+ Bacon, of the advancement of learning, fo. 440.

2. To regulate commerce with foreign nations, and among the several states, and the Indian tribes: leaving the regulation of the internal commerce of each state, to the states, respectively.

3. To establish an uniform rule of naturalization: this being a branch of common law jurisdiction, particularly enumerated, leaves all others not enumerated, with the states, respectively.

4. To establish uniform laws on the subject of bankruptcies. This was no part of the common law of England, the name, as well as the wickedness of bankrupts, according to sir Edward Coke*, being fetched from foreign nations. The grant of special authority, upon this branch of commercial polity, and of the English statute law, shews it was not intended to vest congress with the power of legislating upon all subjects of that nature; all others not enumerated, remaining with the states, respectively.

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. These are, respectively, branches of the royal prerogative in England, and being specially enumerated, shew that it was not intended to trust the exercise of other branches of that prerogative to the federal government; all others not enumerated, (and consistent with the nature and constitution of democratic republics) being reserved to the states, respectively.

6. To provide for the punishment of counterfeiting the securities, and current coin of the United States. Forgery, is an offence at common law; but this clause gives no power to congress over the subject of forgery, generally; but over that branch, only, which relates to counterfeiting the securities of the United States. Counterfeiting the current coin was also treason, by the common law.+ But congress have not power to declare it to be treason in the United States:++ the special power hereby granted, shews that it was not intended to vest congress with the power of punishing offences of this nature, generally,

* 4. Inst. 277. + 1. Hale's Hist. P. C. 222. ++ C. U. S. Art. 3. §. 3.

but such only as are enumerated: all others not enumerated being reserved to the jurisdiction of the states, respectively.

7. To establish post-offices, and post-roads, and,

8. To promote the progress of science and useful arts, by securing to the authors and inventors, for a limited time, the exclusive right to their writings and discoveries. These determinate objects of legislation, upon subjects of general polity, may be referred to the same class as the subject of bankruptcy;

and being particularly enumerated leave all others not enumerated, to the jurisdiction of the states, respectively.

9. To constitute tribunals inferior to the supreme court: another branch of the royal prerogative in England, to which we may refer what was said on the subject of coining money.

10. To define and punish piracies, and felonies, committed on the high seas; and against the law of nations: The power of defining and punishing all felonies and offences committed upon land, in all cases not enumerated, being reserved to the states, respectively.

11. To make rules for the government and regulation of the land and naval forces: that is of the military and maritime states, employed in the service of the union; the government of the civil state, in all cases not enumerated, being reserved to the states, respectively.

12. To provide for calling forth the militia, to execute the laws of the union, suppress insurrections, and repel invasions:

and to provide for organizing, arming, and disciplining them;

and for governing such parts of them, as may be employed in the service of the United States. The right of appointing officers of the militia, and of training, and calling them forth, and of governing them in all other cases, not enumerated, being reserved to the states, respectively.

13. To declare the punishment of treason, under certain restrictions. The definition of treason, being contained in the constitution itself.

14. To exercise exclusive legislation in all cases whatsoever, over such district not exceeding ten miles square, as may by cession of particular states, and the acceptance of congress, become the seat of government of the United States; and to exercise like authority over all places purchased by consent of the legislature in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. The exclusive power of legislating in all cases whatsoever, except within the precincts of the seat of government, not exceeding ten miles square; and except within the precincts of such forts, magazines, arsenals, dock-yards, and other such needful buildings, as may be erected by congress with the consent of the state, in which the same shall be, being reserved to the states, respectively.

Such are the enumerated powers, of congress; to give efficacy to them, as also to the powers expressly granted to the other departments of the federal government, there is an express declaration, of what was perhaps before implied, viz.

15. That congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other vested by the constitution in the government of the United States, or in any department or officer thereof.

This clause, I apprehend, cannot be construed to enlarge any power before specifically granted; nor to grant any new power, not before specifically enumerated; or granted in some other part of the constitution. On the contrary it seems calculated to restrain the federal government from the exercise of any power, not necessarily an appendage to, and consequence of some power particularly enumerated. Acts of congress to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity; or what is worse, acts of usurpation*. The people are not only not bound by them, but the several departments and officers of the governments, both federal, and state, are bound by oath to oppose them; for, being bound

* See the Federalist, No. 33. and No. 44.

by oath to support the constitution, they must violate that oath, whenever they give their sanction, by obedience, or otherwise, to any unconstitutional act of any department of the government.

If the reader can discover in any of the powers before enumerated, that which contains a grant of general jurisdiction in common law cases to the federal government, our enquiry is at an end. And he will render an incomparable act of service to his country, by laying his finger upon that clause, and pointing it out to his fellow-citizens, that they may no longer puzzle themselves, or their agents, about a question of such importance .... But, if he can not do this, and is not yet convinced that no such grant is contained in the constitution, I must request him patiently to attend me, whilst we hunt for it in some other part of that instrument.

2. Then; we are to seek for this grant in that article v/hich relates to the powers and duties of the executive department.

The president, by that article, is declared to be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States: he may require the opinion, in writing, of the principal officer of each of the executive departments, upon any subject relating to the duties of their respective offices, and hath power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. He may with advice and consent of the senate, make treaties; and may nominate, and with consent of the senate, appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers whose appointments are not otherwise provided for; he may fill up all vacancies that may happen during the recess of the senate, by temporary commissions; it is his duty to give congress information of the state of the union, and he may recommend to their consideration such measures as he may judge necessary and expedient; he may on extraordinary occasions convene both houses, or either of them; and in case of disagreement between them with respect to the time of adjournment, may adjourn them; he hath a qualified negative

upon all the other acts, and proceedings; he is to receive ambassadors and other public ministers; he is to take care that the laws be faithfully executed; and to commission all officers of the United States.

The most dextrous political empyric would, I apprehend, be puzzled to extract from the preceding enumeration any thing, which could bear the most distant resemblance to a grant of general jurisdiction in common law cases: we are driven then, in the last resort to seek for it.

3. In that article, which relates to the constitution and powers of the judiciary department. It is therein declared,

That the judicial power shall extend to all cases in law and equity, arising under the constitution; the laws of the United States; and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty; to controversies to which the United States shall be a party; to controversies between two, or more states; between citizens of different states; between citizens of the same state, claiming lands under grants from different states; and between a state and foreign states.

Such is the power of the judiciary department, as now limited by the thirteenth article of the amendments to the constitution of the United States. I shall endeavour to analize the whole.

1. The judicial power of the federal government extends to all cases in law and equity arising under the constitution. Now, the powers granted to the federal government, or prohibited to the states, being all enumerated, the cases arising under the constitution, can only be such as arise out of some enumerated power delegated to the federal government, or prohibited to those of the several states. These general words include what is comprehended in the next clause, viz. Cases arising under the laws of the United States. But as contra-distinguished from

that clause, it comprehends some cases afterwards enumerated e. g. Controversies between two or more states; between a state and foreign states; between citizens of the same state claiming lands under grants of different states; all which may arise under the constitution, and not under any law of the U. States. Many other cases might be enumerated, which would fall strictly under this clause, and no other. As, if a citizen of one state should be denied the privileges of a citizen in another;

so, if a person held to service or labour in one state, should escape into another and obtain protection there, as a free man;

so, if a state should coin money, and declare the same to be a legal tender in payment of debt, the validity of such a tender, if made, would fall within the meaning of this clause. So also, if a state should, without consent of congress, lay any duty upon goods imported, the question as to the validity of such an act, if disputed, would come within the meaning of this clause, and not of any other .... In all these cases equitable circumstances may arise, the cognizance of which, as well as such as were strictly legal, would belong to the federal judiciary, in virtue of this clause.

2. The judicial power of the United States extends to all cases arising under the laws of the United States; .... now as the subjects upon which congress have the power to legislate, are all specially enumerated, so the judicial authority, under this clause, is limited to the same subjects as congress have power to legislate upon. Thus congress being authorised to pass uniform laws of naturalization, the question whether a person is an alien, or not, falls under this head, provided the party were an alien born. So, also, if a person be accused of counterfeiting the public securities of the United States, this question would be cognizable in the federal courts, under this clause;

but if he were accused of any other forgery: of this offence the state courts, and not the federal courts, possess jurisdiction.

3. The power of the federal judiciary extends to cases arising under treaties; as well those already made, as to such as might be made after the adoption of the constltution .... Of the former kind were the questions concerning the validity of pay-

ments made into the state treasuries by British debtors, during the war; of the latter sort, may be such questions as may hereafter arise under the treaty of 1794, enabling British subjects, though aliens, to hold and inherit lands, within the U. States .... In neither of the preceding clauses can we find any thing like a grant of general jurisdiction in common law cases.

4. To all cases affecting ambassadors, other public ministers, and consuls; these cases, although provided for in some countries by statute, where that is not the case, belong to the law of nations, and not to the common law.

5. To all cases of admiralty and maritime jurisdiction;

these were never held to be within the jurisdiction of the common law.

6. To controversies to which the United States shall be a party. The word cases used in the preceding clauses of this article comprehends, generally, I apprehend all cases, whether civil or criminal, which are capable of falling under these heads, respectively, instances of which it might be unnecessary here to repeat: I shall however add to what I have before said, that it comprehends such criminal cases as may arise within the precincts of the seat of government, not exceeding ten miles square; or within the precincts of forts, dockyards, magazines, and arsenals, purchased with the consent of the state in which they maybe; and finally, treason against the U. States; piracies and felonies committed upon the high seas; and offences against the law of nations; and against the revenue laws of the U. S.

The word controversies, as here used, must be understood merely as relating to such as are of a civil nature. It is probably unknown in any other sense, as I do not recollect ever to have heard the expression, criminal controversy. As here applied, it seems particularly appropriated to such disputes as might arise between the U. States, and any one or more states, respecting territorial, or fiscal, matters .... Or between the U. States and their debtors, contractors, and agents. This construction is confirmed by the application of the word in the en

suing clauses, where it evidently refers to disputes of a civil nature only, such for example, as may arise between two or more states; or between citizens of different states; or between a state, and the citizens of another state; none of which can possibly be supposed to relate to such as are of a criminal nature, unless we could suppose it was meant to deprive the states of the power of punishing murder or theft, if committed by a foreigner, or the citizen of another state.

7. The judicial power extends likewise to controversies between two or more states; and between a state, and foreign states. These must be proceeded in, and determined according to the law of nations, and not according to the common law.

8. To controversies between citizens of different states;

and between citizens of any state and the subjects or citizens of foreign states .... In these cases, the municipal law of the place where the cause of controversy arises, whether that be one of the United States, or Great Britain, France, Spain, Holland, Hamburg, or any other country; or the general law of merchants; or, the general law of nations according to the nature and circumstances of the case, must be the rule of decision, in whatever court the suit may be brought. Thus if a bond be given in Philadelphia, the rate of interest must be settled according to the laws of Pennsylvania. If a bill of exchange be drawn in Virginia, the rate of damages must be settled by the law of that state. If in England, Hamburg, or Cadiz, the custom of merchants in those places, respectively, must govern. If a ransom bill be drawn at sea, the law of nations in that case must be consulted. If the controversy relate to lands, the law of the state where the lands lie must be referred to; unless the lands be claimed under grants from different states; in which case the territorial rights of each state must be inquired into. The same must be done, in the last case which remains to be noticed; viz:

9. Controversies between citizens of the same state claiming lands under grants of different states. None of the cases enumerated in this, and the preceding paragraph can be con

strued to give general jurisdiction in cases at common law, or such as ordinarily arise between citizens of the same state;

under which description, civil suits, in general, (with the exception of the case here supposed) are comprehended; or such as may arise between a state, and its own citizens, or subjects; under which head crimes and misdemeanors are comprehended. This being the only enumerated case, in which the federal courts can take cognizance of any civil controversy between citizens of the same state, it can not extend to such common law cases, as may arise between them; all such cases being reserved to the jurisdiction of the states, respectively. And on the other hand, as it does not extend to any case that may arise between a state and its own citizens or subjects; nor to any case between a state, and foreign citizens or subjects, or the citizens of any other state* .... so every such case, whether civil or criminal, and whether it arise under the law of nations, the common law, or law of the state, belongs exclusively, to the jurisdiction of the states, respectively. And this, as well from the reason of the thing, as from the express declarations contained in the twelfth and thirteenth articles of the amendments to the constitution.

Having thus minutely examined all the enumerated powers, which are vested in the federal government, or any of its departments, and not finding any grant of general jurisdiction in cases at common law, we are warranted, under the twelfth article of amendments, in concluding, that no such jurisdiction has been granted; and consequently, that it remains with the states, respectively, in all cases not enumerated; so far, as their several constitutions and legislative acts, may admit the authority and obligation of the common law, or statutes of England, in each state, respectively.

But it has, I believe, been said, that if this general jurisdiction in common law cases has not been granted to the federal government in express terms, yet it is given by implication. This admits of several answers:

* Amendments to C. U. S. Art. 11, now ratified, and declared to be a part of the constitution, Swift's Edi. of L. U. S. Vol. 3. p. 131.

1. The twelfth article of the amendments was proposed, adopted and ratified, for the express purpose of rebutting, this doctrine of grant by implication: since it expressly declares, that the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. And this I hold to be a full answer to the conceit .... But,

2dly. If this were not the case, it would be absurdity in the extreme, to suppose a grant, by implication, of general power to the federal government to revive, and enforce such parts of the common law, or statutes of England, as the states by their respective constitutions had severally condemned in express terms;

and rejected, repealed, and annulled as dangerous, absurd, or incompatible with that system of government which they had, respectively, established.

3dly. This is probably the first instance in which it has been supposed that sovereign and independent states can be abridged of their rights, as sovereign states, by implication, only .... For, no free nation can be bound by any law but it's own will; and where that will is manifested by any written document, as a convention, league, treaty, compact, or agreement, the nation is bound, only according as that will is expressed in the instrument by which it binds itself. And as every nation is bound to preserve itself, or, in other words, it's independence; so no interpretation whereby it's destruction, or that of the state, which is the same thing, may be hazarded, can be admitted in any case where it has not, in the most express terms, given it's consent to such an interpretation.* Now if this construction were once established, that the federal government possesses general jurisdiction over all cases at common law, what else could be the consequence, but, at one stroke, to annihilate the states altogether;

and to repeal and annul their several constitutions, bills of rights, legislative codes, and political institutions in all cases whatsoever. For, what room, or occasion, could there be for a constitution, if the common law of England, be paramount thereto; or for a state legislature, if their acts are not laws, but mere nullities; or

* See Vattel, Book the first.

for courts, if their decisions, founded upon the constitutions and laws of the states, are for that reason null and void?

4thly. If it were admitted, that the federal government, by implication, possesses general jurisdiction over all cases at common law; this construction could not be carried into practice, without annihilating the states, and repealing, and annulling, their several constitutions, bills of rights, and legislative codes:

as a few instances will demonstrate.

The constitution of Virginia declares, and the constitutions of the other states agree therewith, that the legislative, executive, and judiciary departments shall be separate and distinct: the common law unites all three in one and the same person.

The constitution of Maryland declares there shall be no forfeiture of any part of the estate of any person for any crime, except murder, or treason against the state; the laws of Virginia have abolished forfeitures in all cases: The doctrine of forfeiture, in case of conviction, or attainder for any crime, is one of the pillars of criminal jurisprudence, by the common law.

The constitution of Pennsylvania declares, that the penal laws as theretofore used in that state, shall be reformed, and punishment made less sanguinary, and more proportionate to crimes. If the common law be revived, this article is a mere nullity. South-Carolina has an article in it's constitution to the same effect.

The same constitution declares, that the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of the government. It is contended by some persons in power, that the common law does not permit this freedom to any person.

The constitution of Georgia declares, that no grand-jury shall consist of fewer than eighteen persons; the common law deems sixteen a sufficient number.

The same constitution will not allow of a special verdict in any case: The practice of the common law courts in England for five hundred years past, has been to the contrary.

The constitution of North Carolina, declares, that every foreigner who comes to settle in that state, having first taken an oath of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate; and after one year's residence shall be deemed a free citizen. The constitution of Pennsylvania, has an article to the same effect .... The foreigner is not naturalized immediately upon taking the oath of allegiance; he continues an alien for a year; and if he departs before its expiration, remains an alien: yet he may acquire, hold, and transfer lands: by the common law, an alien can not hold lands.

The constitution of Georgia, prohibits entails; and declares that the real estate of a person dying intestate shall be divided equally among his children: that the widow shall have a child's part, or her dower, at her option. And if there be no children the estate shall be divided among the next of kin. The common law admits of entails; and absolutely rejects the other provisions of this article.

The constitutions and laws of all the states of the union, (except Massachusetts, where there have been judicial decisions to the contrary), admit slavery. The common, as understood for many centuries past in England, absolutely rejects slavery .... ....

Should a question arise upon that subject in Maryland, Virginia, North Carolina, South Carolina or Georgia, it might be of serious consequence, if the common law were pronounced to be paramount to the laws of the states.

Lastly, The constitutions and laws of all the states, in which the common law and statutes of England have been expressly adopted, in a certain degree, declare that those laws are not to be construed so as to impair any of the rights and privileges contained in their respective constitutions and laws; and further subject them to be repealed, altered, or annulled, by acts of their

respective legislatures: the construction contended for, would render the common law paramount to those constitutional declarations, and to all legislative acts. These cases might be multiplied without end; I shall only add one more, which may serve to illustrate the consequences likely to flow from this doctrine, were it possible it should be established.

The constitution of Pennsylvania, declare, that all men have a natural inherent right to emigrate from one state to another that will receive them, whenever they think, that thereby, they may promote their own happiness. Virginia, made a law to the same effect, in the year, 1783, which still continues to be a part of her code. The English jurists deny to the subjects of the crown of Great Britain the right of expatriation, a doctrine which they contend is derived from the common law.* In those states which have adopted the common law under certain limitations, but have made no declaration in their constitution, nor any legislative act upon the subject, the right of expatriation may still be questionable. But ought it to be questioned in Pennsylvania, or Virginia, (both which states have, in the most solemn and explicit manner repealed the law,) because it is still questionable in Connecticut, where the law was, perhaps, not repealed, because the right had never before been questioned. What a snare is it for the feet of the citizens of the United States, if obsolete maxims of this kind, may be revived at the discretion of a judge, and entered with severe penalties, notwithstanding they may have

* In F. N. B. p. 85. It is expressly said, "that by the common law every man may go out of the realm, to merchandize, or on pilgrimage, or for what other cause he pleaseth, without the king's leave, and he shall not be punished for so doing." The Stat. 3 Ja. 1, c. 4. for the better discovering and repressing popish recusants, first prohibited any person from going out of the realm to serve any foreign prince, without having first taken the oath of allegiance before his departure: the reason of which statute, surely, can not now apply to American citizens .... Mr. Locke, with his usual discernement, examines and refutes the doctrine, that all men are bound to continue in subjection to that government under which they may happen to be born. A doctrine, which having been practically denied by the whole people of America seems to sanction the right of every individual to do the like, even if they had not expresslly recognized it, by constitutional, and legislative declarations. See Locke on Civil Government, Sec. 113, &c.

been expressly repealed and annulled in the most solemn manner by the authority of the states, respectively! What principle can be established, more inimical to the independence of sovereign states, or more destructive to the liberty, security, and happiness of the citizen, than, that the unwritten law of a foreign country, differing from them in the fundamental principles of government, is paramount to their own written laws, and even to those constitutions, which the people had sealed with their blood, and declared to be forever inviolable! Such, however, is the necessary, and inevitable consequence, of this constructive grant of jurisdiction in all cases at common law, to the courts of the United States, or to any department of the federal government.

But, were it possible that the consequence above mentioned would not follow, which, however, seems to be altogether inevitable, another consequence, scarcely less mischevous, must follow from the rule contended for; if, in reducing it to practice in the federal courts, it should be admitted, that the common law might be repealed in certain states, in virtue of their constitutions or legislative acts, but remain in full vigour in others. Thus, if it be admitted in the federal courts that a native citizen of Pennsylvania, or Virginia, may expatriate himself, because the constitution of the former, and the law of the latter, expressly permit him to do so; but that a native citizen of Connecticut, cannot expatriate himself, because the common law has not been repealed in that state; here the same action must, by the same judge, be decided to be lawful in one part of the United States, and unlawful in another. Consequently, a native citizen of Connecticut, may be punished, as a citizen of the United States, for doing that, which a native of Pennsylvania, or Virginia, may do with impunity. On the other hand, if the right of expatriation be denied, in the case of a native of Pennsylvania, or Virginia, would not such a denial amount to a declaration, that the common law of England is paramount to the law of the one, and the constitution of the other? This dilemma proves, that it could not be the intention of the several states to grant a power so unbounded in its operation, and so destructive to those principles which they deemed inseparable from their constitutions, and therefore sacred, and inviolable.

But perhaps it will be contended, that the power of establishing an uniform rule of naturalization, includes in it the power to prohibit the right of expatriation. This admits of more than one answer.

1. If it be true; (which is by no means admitted) congress alone have power to prohibit the exercise of that right; which, not having yet done, the right, until they do so, remains as before the adoption of the federal constitution.

2. The power of establishing an uniform rule of naturalization, relates to aliens; that of prohibiting expatriation to citizens: the first, to rights to be acquired; the second, to rights to be abandoned. The first relates to such persons as thereafter submit themselves to our jurisdiction; the second, to such as thenceforward renounce their connexion with us, forever .... The former to political, the latter to natural, right.

5th. But to return to our subject; there are certain passages in the constitution, and the amendments thereto, not yet noticed, which perhaps may be relied on to establish this doctrine of a grant of general jurisdiction to the federal courts or government, in cases at common law, by implication: These are,

1. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.

2. The trial of all crimes, except in cases of impeachment, shall be by jury.

3. In suits at common law, the right of trial by jury, shall, (in general) be preserved: and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

In all these passages, we may be told, the common law is evidently referred to as the law of the land. This is not the case;

it is referred to as a known law: and might in strictness have

been referred to as the law of the several states, so far as their constitutions and legislative codes, respectively, have admitted or adopted it. Will any man who knows any thing of the laws of England, affirm, that the civil, or Roman Imperial law, is the general law of the land in England, because many of it's maxims, and it's course of proceedings, are generally admitted and established in the high court of chancery, which is the highest court of civil jurisdiction, except the parliament, in the kingdom? Or that the canon, or Roman ecclesiastical law, is the general law of the land, because marriages are solemnized according to it's rites; or because simony, which is an ecclesiastical offence, is also made an offence by statute?

But it will be asked, what is meant by suits at common law, the cognizance of which, from this article, appears to belong to the federal courts. The answer is easy; in many of the states, the courts are distinguished by the epithets of common law courts, and courts of equity. In the former, the rules and mode of proceeding in the English courts of common law jurisdiction, have under different modifications been adopted; the latter pursue the course of the civil law. Suits cognizable in these courts, respectively, are consequently denominated, suits at common law, and suits in equity, comprehending under these terms all civil suits, except such as are of a maritime nature .... The trial by jury being the usual mode of trial in all the states, except in the courts of equity, it was thought expedient to preserve the same mode of trial in the federal courts, as in the state courts. The article gives not a new jurisdiction, not before expressly granted, in the third article of the constitution; it merely prescribes a mode of trial.

We may fairly infer from all that has been said that the common law of England stands precisely upon the same footing in the federal government, and courts of the United States, as such, as the civil and ecclesiastical laws stand upon in England:

That is to say, it's maxims and rules of proceeding are to be adhered to, whenever the written law is silent, in cases of a similar, or analogous nature, the cognizance whereof is by the constitution vested in the federal courts; it may govern and direct

the course of proceeding, in such cases, but cannot give jurisdiction in any case, where jurisdiction is not expressly given by the constitution. The same may be said of the civil law; the rules of proceeding in which, whenever the written law is silent, are to be observed in cases of equity, and of admiralty, and maritime jurisdiction. In short, as the matters cognizable in the federal courts, belong, (as we have before shewn, in reviewing the powers of the judiciary department) partly to the law of nations, partly to the common law of England; partly to the civil law; partly to the maritime law, comprehending the laws of Oleron and Rhodes; and partly to the general law and custom of merchants; and partly to the municipal laws of any foreign nation, or of any state in the union, where the cause of action may happen to arise, or where the suit may be instituted; so, the law of nations, the common law of England, the civil law, the law maritime, the law merchant, or the lex loci, or law of the foreign nation, or state, in which the cause of action may arise, or shall be decided, must in their turn be resorted to as the rule of decision, according to the nature and circumstances of each case, respectively. So that each of these laws may be regarded, so far as they apply to such cases, respectively, as the law of the land. But to infer from hence, that the common law of England is the general law of the United States, is to the full as absurd as to suppose that the laws of Russia, or Germany, are the general law of the land, because in a controversy respecting a contract made in either of those empires, it might be necessary to refer to the laws of either of them, to decide the question between the litigant parties. Nor can I find any more reason for admitting the penal code of England to be in force in the United States, (except so far as the states, respectively, may have adopted it, within their several jurisdictions) than for admitting that of the Roman empire, or of Russia, Spain, or any other nation, whatever.

One or two instances, in addition to those already mentioned, may set this matter in a clearer light. If a suit be brought in a federal court upon a bond executed in England, the bond must be actually sealed, because the common law of England requires that every bond, deed, or covenant, should be executed

in that manner; and if it be not, it is not a bond, but merely a

simple contract; but if the bond be executed in Virginia, where a scroll by way of seal, is by law declared to be as effectual as if the instrument were actually sealed, there the law of the state

shall prevail, and turn that contract into a specialty, by which the lands of the obligor may be bound, which in England would only bind his goods and chattels, after his decease. So if a bill of exchange be drawn in Virginia, an action of debt may be maintained thereupon, in that state; but if it be drawn in any other state, or country, the action I apprehend, must be brought, even in that state upon the custom of merchants. Thus, the lex loci may operate not only so as to determine the nature of the contract, but of the remedy. And with respect to the mode of proceeding, in order to a remedy, wherever the constitution and laws of the United States are silent, there, I apprehend, the law of the state, where the suit is brought, ought to be observed as a guide: thus if a suit be brought upon a bond the plaintiff may demand bail, in Virginia, as of course, and an endorsement to that effect will be sufficient to compel the sheriff, who executes

the writ, to take bail at his peril. But in England, the plaintiff in that case, must make an affidavit of the sum actually due upon the bond, otherwise the sheriff is not obliged to take bail. So in the same case, if the sheriff neglects to take bail where he ought to do it, the plaintiff may proceed, in Virginia, against the defendant and sheriff, at the same time, and shall have judgment for his debt against both at once, unless special ball be put in;

whereas in England, he must bring a special action on the case, against the sheriff, for neglect of his duty, instead of having the remedy which the laws of Virginia furnish him with. So also, if a bond be executed in London, and a suit be brought thereupon, in the state of Virginia, the defendant cannot plead non est factum, as is the usual course of pleading in England, unless he verifies his plea by affidavit; without which it cannot be received; and the same course of proceeding, I apprehend, is to be observed in the federal, as in the state courts.

From the whole of the preceding examination, we may deduce the following conclusions:

First .... That the common law of England, and every statute of that kingdom, made for the security of the life, liberty, or property of the subject, before the settlement of the British colonies, respectively, so far as the same were applicable to the nature of their situation and circumstances, respectively, were brought over to America, by the first settlers of the colonies, respectively; and remained in full force therein, until repealed, altered, or amended by the legislative authority of the colonies, respectively; or by the constitutional acts of the same, when they became sovereign and independent states.

Secondly .... That neither the common law of England, nor the statutes of that kingdom, were, at any period antecedent to the revolution, the general and uniform law of the land in the British colonies, now constituting the United States.

Thirdly .... That as the adoption or rejection of the common law and statutes of England, or any part thereof, in one colony, could not have any operation or effect in another colony, possessing a constitutional legislature of it's own; so neither could the adoption or rejection thereof by the constitutional, or legislative act of one sovereign and independent state, have any operation or effect in another sovereign independent state; because every such state hath an exclusive right to be governed by it's own laws only.

Fourthly .... Therefore the authority and obligation of the common law and statutes of England, as such in the American states, must depend solely upon the constitutional or legislative authority of each state, respectively; as contained in their several bills of rights, constitutions, and legislative declarations .... which, being different in different states, and. wholly independent of each other, cannot establish any uniform law, or rule of obligation in all the states.

Fifthly .... That neither the articles of confederation and perpetual union, nor, the present constitution of the United States, ever did, or do, authorize the federal government, or any department thereof, to declare the common law or statutes of Eng

land, or of any other nation, to be the law of the land in the United States, generally, as one nation; nor to legislate upon, or exercise jurisdiction in, any case of municipal law, not delegated to the United States by the constitution.

POSTSCRIPT.

SINCE the publication of the preceding tract, I have met with the case of the United States against Worral*, which I had not before seen.

The defendant was charged with an attempt to bribe Tench Coxe, commissioner of the revenue; it was admitted that the offence did not come within the act of 1 Congress, 2 Session, c. 9, §. 21. and a question was asked of the attorney for the U. States, by Judge Chase, whether he meant to support his indictment solely at common law? If you do, said he, I have no difficulty upon the subject. The indictment cannot be maintained in this court, viz. The circuit court of the U. States, for the district of Pennsylvania.

The attorney for the United States, answering in the affirmative; Chase, justice, stopped the counsel for the defendant, and delivered an opinion to the following effect.

CHASE, Justice. "This is an indictment for an offence highly injurious to morals, and deserving the severest punishment; but as it is an indictment at common law, I dismiss, at once, every thing that has been said about the constitution and laws of the United States.

* 2 Vol. Dallas's Reports, 384.

"In this country, every man sustains a two-fold political capacity; one in relation to the state, and another in relation to the United States: for the constitution of the union is the source of all the jurisdiction of the national government; so that the departments of the government can never assume any power that is not expressly granted by that instrument, nor exercise a power in any other manner than is there prescribed. Besides the particular cases, which the eighth section of the first article designates, there is a power granted to congress to create, define, and punish crimes and offences, whenever they shall deem it necessary and proper by law to do so, for effectuating the objects of the government; and although bribery is not among the crimes and offences specially mentioned, it is certainly included in this general provision. The question, however, does not arise about the power: whether the courts of the United States can punish a man for any act, before it is declared by a law of the United States, to be criminal? Now, it appears to my mind, to be as essential, that congress should define the offences to be tried and apportion the punishment to be inflicted, as that they should erect courts to try the criminal, or to pronounce a sentence on conviction.

"It is attempted, however, to supply the silence of the constitution, and statutes, of the union, by resorting to the common law, for a definition and punishment of the offence which has been committed: but, in my opinion, the United States, as a federal government, have no common law. If indeed the U. States, can be supposed for a moment, to have a common law, it must, I presume, be that of England; and yet it is impossible to trace, when, or how, the system was adopted, or introduced. With respect to the individual states, the difficulty does not occur. When the American colonies were first settled by our ancestors, it was held, as well by the settlers, as by the judges and lawyers of England, that they brought hither as a birthright and inheritance, so much of the common law, as was applicable to their situation, and change of circumstances. But each colony judged for itself, what parts of the common law were applicable to its new condition; and in various modes, by legislative

acts, by judicial decisions, or by constant usage, adopted some parts, and rejected others. Hence, he who shall travel through the different states, will soon discover, that the whole of the common law of England, has been no where introduced; that some states have rejected what others have adopted; and that there is, in short, a great and essential diversity, in the subjects to which the common law is applied, as well as in the extent of the application. The common law, therefore, of one state, is not the common law of another; but the common law of England, is the law of each state, so far as each state has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a federal, or state court.

"But the question recurs, when and how, have the courts of the United States acquired a common law jurisdiction in criminal cases? The United States must possess the common law themselves, before they can communicate it to their judicial agents: now the United States did not bring it with them from England; the constitution does not create it; and no act of congress has assumed it. Besides, what is the common law, to which we are referred? Is it the common law entire, as it exists in England; or modified as it exists in some of the states; and of the various modifications, which are we to select; the system of Georgia, or New-Hampshire, Pennsylvania or Connecticut?

"Upon the whole, it may be a defect in our political institutions, it may be an inconvenience in the administration of justice, that the common law authority, relating to crimes and punishments, has not been conferred upon the government of the United States, which is a government in other respects also of a limited jurisdiction: but judges cannot remedy political imperfections, nor supply any legislative omission. I will not say whether the offence is at this time cognizable in a state court. But certainly congress might have provided, by law, for the present case, as they have provided for other cases of a similar nature; and yet if congress had even declared and defined the offence, without

prescribing a punishment, I should still have thought it improper to exercise a discretion upon that part of the subject."

PETERS, Justice. "Whenever a government has been established, I have always supposed, that a power to preserve itself, was a necessary, and an inseparable concomitant. But the existence of the federal government would be precarious, it could no longer be called an independent government, if, for the punishment of offences of this nature, tending to obstruct and pervert the administration of it's affairs, an appeal must be made to the state tribunals, or the offenders must escape with absolute impunity.

"The power to punish misdemeanors, is originally and strictly a common law power; of which, I think, the United States are constitutionally possessed. It might have been exercised by congress in form of a legislative act; but it may, also, in my opinion, be enforced in a course of judicial proceeding. Whenever an offence aims at the subversion of any federal institution, or at the corruption of it's public officers, it is an offence against the well-being of the United States; from it's very nature, it is cognizable under their authority; and, consequently, it is within the jurisdiction of this court, by the 11th section of the judicial act."

Here then are two opposite opinions on this great question. On the trial of Isaac Williams, in the district court of Connecticut, February 37, 1797, for accepting a commission under the French Republic, and under the authority thereof committing acts of hostility against Great-Britain, the defendant alledged, and offered to prove that he had expatriated himself from the United States, and become a French citizen before the commencement of the war between France and England. This produced a question as to the right of expatriation; when Judge Ellsworth, then chief justice of the United States, is said to have delivered an opinion nearly to the following effect.

"The common law of this country remains the same as it was before the revolution. The present question is to be decided

by two great principles; one is, that all the members of a civil community are bound to each other by compact; the other is, that one of the parties to this compact cannot dissolve it by his own act. The compact between our community and it's members is, that the community shall protect it's members, and on the part of the members, that they will at all times be obedient to the laws of the community, and faithful in it's defence. It necessarily results that the member cannot dissolve this compact, without the consent or default of the community. There has been no consent .... no default. Express consent is not claimed;

but it is argued that the consent of the community is implied, by it's policy .... it's conditions .... and it's acts. In countries so crouded with inhabitants, that the means of subsistence are difficult to be obtained, it is reason and policy to permit emigration;

but our policy is different; for our country is but scarcely settled, and we have no inhabitants to spare.

"Consent has been argued from the condition of the country, because we were in a state of peace. But though we were in peace, the war had commenced in Europe. We wished to have nothing to do with the war; but the war would have something to do with us. It has been extremely difficult for us to keep out of this war; the progress of it has threatened to involve us. It has been necessary for our government to be vigilant in restraining our own citizens from those acts which would involve us in hostilities. The most visionary writers on this subject do not contend for the principle in the unlimited extent, that a citizen may, at any, and at all times, renounce his own, and join himself to a foreign country.

"Consent has been argued from the acts of our government permitting the naturalization of foreigners. When a foreigner presents himself here, we do not inquire what his relation is to his own country; we have not the means of knowing, and the inquiry would be indelicate; we leave him to judge of that. If he embarrasses himself by contracting contradictory obligations, the fault and folly are his own; but this implies no consent of the government that our own citizens should also expatriate themselves .... It is, therefore, my opinion, that these facts which

the prisoner offers to prove, in his defence, are totally irrelevant," &c. The prisoner was accordingly found guilty, fined and imprisoned. See the account of his trial, National Magazine, No. 3, p. 254. I presume not to answer for the correctness of it.

As the learned judge in this opinion, refers to no express prohibitory law, except the common law, (by which I presume was meant the common law of England) we must understand his opinion, as founded upon the doctrine that the common law of England is the common law of the United States, in their federal, and national capacity and character. How far reason is on the side of that opinion, the student may form some judgement from what has been said in the foregoing essay.

And here it will be proper to subjoin an instruction from the general assembly of Virginia, to the senators from this state, in congress, January 11,1800.

"The general assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle, and tremendous in its consequences: That the common law of England is in force under the government of the United States. It is not at this time proposed to expose at large the monstrous pretentious resulting from the adoption of this principle. It ought never, however, to be forgotten, and can never be too often repeated, that it opens a new tribunal for the trial of crimes never contemplated by the federal compact. It opens a new code of sanguinary criminal law, both obsolete and unknown, and either wholly rejected or essentially modified in almost all it's parts by state institutions. It arrests, or supercedes, state jurisdictions, and innovates upon state laws. It subjects the citizens to punishment, according to the judiciary will, when he is left in ignorance of what this law enjoins as a duty, or prohibits as a crime. It assumes a range of jurisdiction for the federal courts, which defies limitation or definition. In short it is believed, that the advocates for the principle would, themselves, be lost in an attempt, to apply it to the existing institutions

of federal and state courts, by separating with precision their judiciary rights, and thus preventing the constant and mischievous interference of rival jurisdictions.

"Deeply impressed with these opinions, the general assembly of Virginia, instruct the senators, and request the representatives from this state, in congress, to use their best efforts ....

"To oppose the passing of any law, founded on, or recognizing the principle lately advanced, 'that the common law of England, is in force under the government of the United States;' excepting from such opposition, such particular parts of the common law, as may have a sanction from the constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government .... and excepting, also, such other parts thereof as may be adopted by congress as necessary and proper for carrying into execution the powers expressly delegated."

NOTE F.

OF THE LEX SCRIPTA, OR WRITTEN LAW, OF VIRGINIA.

THE LEX SCRIPTA, or Written Law of the commonwealth of Virginia, may be arranged under six different heads. 1st. The constitution of the United States; 2d. Laws of the United States made in pursuance thereof; 3d. Treaties made, or which hereafter may be made, under the authority of the United States; 4th. The constitution of the commonwealth of Virginia;

5th. Acts of the general assembly of the colony of Virginia, antecedent to the revolution, and of the commonwealth, since that period; 6th. Certain acts of the parliament of England, antecedent to the settlement and establishment of the colony of Virginia.

1, 2, and 3. The constitution of the United States, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, are by that constitution declared to be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary, notwithstanding. And the senators and representatives of the United States, and the members of the several state legislatures, and all executive and judicial officers, both of the United States, and of the several states, shall be bound by oath or affirmation to support the constitution*.

* C. U. S. Art. 6.

4. The fourth part of the lex scripta, or written law of this commonwealth, and formerly the first in point of obligation, and pre-eminence, is the constitution of the commonwealth: concerning which, as well as the three preceding heads, sufficient hath been said in the foregoing tracts.

5. The acts of the colonial and state legislature, successively, form a fifth part of the written law of the commonwealth.

This body, like the congress of the United States, consists of two distinct branches, differently chosen, and organized, in some respects, but equally the immediate representatives of the people; being both chosen by the same persons (though in larger districts) and with the same qualifications; except in respect to age; though the senators are chosen by a larger portion of the community, and serve for a longer period than the delegates,

The constitution requires that these two bodies should meet once, or oftener, every year, in general assembly, for the purpose of making such laws as shall be necessary for the common good;

and the acts made by them, if neither repugnant to the constitution of the United States, nor to any law, or treaty made under the authority thereof, nor to the constitution of the commonwealth, are binding upon every other branch of the government, as well as upon all orders and descriptions of persons within the commonwealth.

To form a complete digest of statute law, as was observed in another place, seems to have been a favourite object with the legislature of Virginia; and repeated and frequent attempts have been made to effectuate that purpose; but unfortunately the disposition to change has been such, that laws have not unfrequently been altered, suspended, or wholly repealed, even before they have obtained a place in the new code .... There have been five compilations made under legislative authority within about sixty years; neither of which could be regarded as complete, the number of omitted laws, being probably more than ten-fold the

number of those that are preserved*. A thousand inconveniencies and perplexities daily arise from this circumstance, and are likely daily to increase. The compilations now to be met with (though most of them very rarely) are Purvis', printed in 1684, but whether by authority or not, does not appear. Park's, printed in 1733. Hunter's, in 1753. Rind and Purdie's, in l769. Nicolson and Prentis' in 1785; and Davis' in 1794. The sessions acts are usually sent out in sheets, and are rarely preserved, even till a succeeding session, without mutilation. Hence arises one of the greatest difficulties attending the study of the law in Virginia .... A proposal was laid before the legislature in 1796, to direct a new publication of all the laws of the state .... but no attention seems to have been paid to it, though made from a quarter + which, it was supposed, would procure it that respect.

The manner of making these laws will be better considered hereafter, when we are to examine the constitution of the congress, and of the general assembly of the state .... For the different kinds of acts, or statutes, as they may be properly termed, with the general rules of construction, I shall refer the student to 1 Blacks. Com. p. 85, 91.

The constitution of the United States imposes certain restrictions upon the states, which in their operation must be considered as restraining the power of the legislature particularly.

First, no state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money;

emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. All acts of the state, therefore, on any of these subjects, whether entered into or passed by the legislature,

* In the editions of 1733 and 1753, the titles of the omitted acts are retained in the order of time in which they were passed; but this necessary circumstance was altogether disregarded in the edition of 1769. The edition of 1785 retains the titles of all omitted acts passed between the years 1769 and 1784. But the edition of 1794 omits the titles, as well as the acts.

+ Mr. Jefferson, Mr. Wythe, Mr. Marshall, and some others.

or any other department of the state government, are absolutely null and void, ab initio.

Secondly, no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the congress. No state shall, without consent of congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

On the subject of both these prohibitory clauses of the constitution of the United States, we have offered some remarks at large, in the tract upon the constitution of the United States. They are repeated here, for the sake of regularity, only.

6th. The sixth and last branch of the written law of the commonwealth, are certain acts of the parliament of Great-Britain.

In the preceding note*, we endeavoured to shew, that our forefathers migrating to this new country, brought with them all the laws of the parent state, which were applicable to their new condition and circumstances; and this extended not only to the common and unwritten law, but also to the written laws of the kingdom from whence they emigrated. But this principle extends only to the existing laws of the parent state, at the time of the colony being settled, and not to such as should be thereafter made. Upon these grounds it was always held, during the regal government, that all statutes of the kingdom of Great Britain made prior to the fourth year of the reign of James the first,

* Some few acts of parliament prior to that period, were re-enacted in Virginia.

which were applicable to the circumstances of a remote and infant colony, were actually in force in Virginia: the colonial legislature, therefore, held it to be generally unnecessary, by any special acts, to re-enact them so as to form a part of the colonial code*. Hence, at the revolution, the same convention which established the constitution, judged it expedient to pass an ordinance, declaring that "all statutes or acts of parliament made in aid of the common law, prior to the fourth year of James the first, and which are of a general nature, not local to that kingdom, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force until the same be altered by the legislative power of the colony."+

The change of principle which had taken place in the government, very soon manifested the necessity of revising a code formed upon monarchical principles, and not unfrequently under the auspices of despots, who dictated to their complying parliaments, whatsoever might contribute to strengthen and confirm the power which they had by continual usurpations obtained .... A special committee was therefore appointed in October 1776, to prepare such a code of law, as should be adapted to the republican spirit of the newly established constitution. A judicious selection of the British statutes was made by this committee, in 1785, and 1786, the general assembly acted upon their report, and passed a considerable number of the acts which they had prepared, in consequence of which a very considerable part of the British statute book, was either repealed, or enacted in the form of Virginia laws. But the whole report was not acted upon .... the system was thereby rendered incomplete. In 1786, another act was passed for "completing the revision,"++ which directed that a committee of three should be appointed to take into consideration the bills reported by the former committee, which had not been enacted into laws, to examine what alterations should be made therein, and report thereupon to the next assembly as they should judge proper: they were likewise au-

* Note E.

+ 1776, c. 5. See also, Vol, 2, p. 259, note 2

++ Acts of 1786 c. 113.

thorised to take into consideration all acts passed subsequent to the revisal being prepared, with full power to revise, alter, amend, repeal, or introduce all or any of them, and to prepare bills on the subject, and report them to the general assembly, with a proviso that they should have no force or effect, until enacted by the general assembly. What was done in consequence of this act I have never been informed, but I believe that no step whatsoever was taken in pursuance of it. In 1789, several other salutary British statutes were introduced into the state code, by the general assembly. In the same session another committee was appointed to prepare a new edition of the laws, a part of whose duty it was to report, "what English statutes, if any there be, are suited to this commonwealth, and shall not have been enacted in the form of Virginia laws."* Nineteen statutes were reported by that committee as proper to be re-enacted.

The assembly at the same session passed an act,+ repealing so much of the ordinance of convention above mentioned as relates to any British statute, and declaring that after the first day of January, 1791, no such statute should have any force or authority within this commonwealth. This act was at the succeeding session suspended,++ until the general assembly should have acted upon the report of another committee, thereby appointed for the purpose of carrying the former act concerning a new edition of the laws into effect, a part of whose duty was assigned by the act, "to prepare bills on the subject of such British statutes, if any there be, which are suited to this commonwealth, and have not been enacted in the form of Virginia laws." In pursuance of the directions of this act, the committee reported draughts of bills to the general assembly on the subject of all such remaining statutes as had not already been enacted by the legislature, and as it was conceived proper to adopt in our code, which were accordingly passed, at the succeeding session in 1792. At the same session the assembly passed an act repealing, under certain restrictions, all statutes or

* Acts of 1789, c. 9. + Ibid. c. 17. ++ Acts of 1790, c. 20.

acts of the parliament of Great Britain heretofore in force within this commonwealth, with a proviso, "That all rights arising under any such statute or act, and all crimes and offences committed against the same, at any time before the commencement of this act, shall remain in the same condition in all respects, as if this act had never been made." "Saving moreover to this commonwealth, and to all and every person and persons, bodies politic and corporate, and each and every of them, the right and benefit of all and every writ and writs, remedial and judicial, which might have been legally obtained from, or sued out of any court or jurisdiction of this commonwealth, or the office of the clerk of any such court or jurisdiction, before the commencement of this act, in like manner, with the like proceedings thereupon to be had, as fully and amply to all intents, constructions and purposes, as if this act had never been made; any thing herein contained, to the contrary or seeming to the contrary notwithstanding*".

* V. L. Edition of 1794, c. 147.

THE END.

ROBERT CARR, PRINTER, CHURCH-ALLEY.

ERRATA.

Preface, p. 91, 1. 17. for 'legislature', read legislative, p. 120, 1. 4, of Note 3. for 'case', read care. Appendix, p. 18, 1. 14. for 'presumption', read resumption. p. 30. 1. l. for 'proved,' read was provided. p. 39. 1. 9. for 'vousque', read viresque. p. 43. 1. 30. for 'tenors', read terrors, p. 80. 1. 5. for 'concentrated', read consecrated. p. 87. 1. 27. for 'on', read or. p. 92. 1. 36. for 'Wilson', read Nelson. p. 103.1. 35. for 408. read 101. p. 105. 1. 41. for 'Division,' read Divisor. p. 110. 1. 24. after eastern, add or western. p. 145. 1. 21. for 'the', read these. p. 150. 1. 13. for 'legislature', read legislative, p. 151. 1. 30. for 'are,' read may be. p. 176. 1. 28 for 'constitution,' read construction. p. 193. 1. 22. for 'confined,' read confirm'd. p. 203. 1. 29. after 'legislative.' strike out and. p. 205. 1. 23. for special read speedy, p. 213. 1. 17. for 'distict,' read district, p. 225.1. 22. for 'can be so long', read can be long. p. 226. 1. 7. for 'held', read withheld. p. 228. 1. 4. for 'on,' read in. p. 233. 1. 2. for 'imposts,' read imports, p. 241. 1. 22. after debts, insert and. p. 243. 1. 9. for 'the,' read this. p. 261. 1. 19. for 'treaties', read treatise. p. 266. 1. 9. for 'being', read be. p. 292. 1. 24. for 'of felony', read or felony. p. 294. last line, for 194. read 232, 233, 234. p. 315. 1. 11. for 'from,' read upon. p. 343. 1. 3. after 'case', insert of. p. 333. 1. 32. for '3 Cess.' read 3 Ass. (or Assise.) p. 361. 1. 24. after also, insert it. p. 425. 1. 24. after 'common,' insert law. p. 434. 1. 15. after 'power', insert but about the exercise of the power. p. 444. 1. 23. after 'committee,' insert and.