ONE OF THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED
STATES, AND PROFESSOR OF LAW IN THE COLLEGE OF PHILADELPHIA.
UNDER THE DIRECTION
FUNDAMENTUM EST LIBERTATIS, QUA FRUIMUR. LEGUM OMNES SERVI SUMUS, UT
LIBERI ESSE POSSIMUS. ―
THE LORENZO PRESS, PRINTED FOR BRONSON AND CHAUNCEY.
PENNSYLVANIA: ― TO WIT.
BE IT REMEMBERED, That
on the fifth day of July, in the twenty ninth year of the
independence of the United States of America, BIRD WILSON, Esquire,
of the said district, hath deposited in this office the title of a
book, the right whereof he claims as proprietor, in the words
following, to wit:
"The Works of the
Honourable James Wilson, L. L. D. late one of the Associate Justices
of the Supreme Court of the United states, and Professor of Law in
the College of Philadelphia. Published under the direction of Bird
Wilson, Esquire. Lex fundamentum est libertatis, qua fruimur. Legum
omnes servi sumus, ut liberi esse possimus." ―
In conformity to the
act of the Congress of the United States entitled "An act for
the encouragement of learning by securing the copies of maps, charts
and books to the authors and proprietors of such copies during the
times therein mentioned; and also to the act entitled "An act
supplementary to an act entitled "An act for the encouragement
of learning, by securing the copies of maps, charts, and books to the
authors and proprietors of such copies during the times therein
mentioned," and extending the benefits thereof to the arts of
designing, engraving, and etching historical and other prints."
CALDWELL, Clerk of the
incomplete state of the lectures on law, notwithstanding the lapse of
several years between the time at which those now published were
delivered and the death of the Author, is a circumstance of which the
publick will naturally inquire the cause. The circumstance itself is
certainly much to be lamented; but its clause presents a subject of
still deeper regret.
The law professorship,
in the college of Philadelphia, was established in the year 1790; and
the Author was appointed the first professor. The extent of his plan
of lectures rendered it impossible for him to go through his whole
subject in one season: three courses were necessary for the purpose.
The first course, which was delivered in the winter of 1790-91,
consisted of those lectures contained in what the Editor has entitled
the first part. The second course, which was, in a great
measure, delivered in the following winter, would have consisted of
the remaining two parts now published. In April, 1792, the college of
Philadelphia and the university of Pennsylvania were, by an act of
assembly, united into one seminary, under the latter title. A law
professorship was erected in the new seminary, and the Author again
appointed to fill the chair; but no lectures were delivered after the
union. The preceding course had been interrupted and was not
completed. The causes of these circumstances are not within the
Editor's knowledge. He knows, however, that, though the delivery of
the lectures was discontinued, the Author designed to complete his
plan for publication. From this design his attention was drawn by
another object of more importance, in which he was engaged.
In March, 1791, the
house of representatives in the general assembly of Pennsylvania,
resolved to appoint a person to revise and digest the laws of the
commonwealth; to ascertain and determine how far any British statutes
extended to it; and to prepare bills, containing such alterations,
additions, and improvements as the code of laws, and the principles
and forms of the constitution then lately adopted might require. The
Author was unanimously appointed for that purpose. The nature of the
plan which he formed in consequence of this resolution, will appear
from the following letter on the subject, delivered to the speaker of
the house of representatives on 24th August, 1791.
WHILE I am employed in
executing the trust committed to me by the house of representatives,
it is, I conceive, my duty, from time to time, to inform them,
through you, of the steps which I have taken, and of those which I
mean to take, in order to accomplish the great end which is in
From the records
deposited in the rolls office, I have taken an account of all the
laws made in Pennsylvania from its first settlement till the
beginning of the last session of the legislature. They are in number
one thousand seven hundred and two. Their titles I have entered into
a book, in the order, usually chronological, in which they are
recorded. On some of them, especially those of an early date, I have
made and minuted remarks: and have left ample room for more, in the
course of my further investigations. I have also reduced their
several subjects into an alphabetical order, by entering them
regularly in a common place book. This process required time, and
care, and a degree of minute drudgery; but it was absolutely
requisite to the correct execution of the design. Mow can I make a
digest of the laws, without having all the laws upon each head in my
view? This view can in the first instance be obtained only by ranging
them in an exact common place.
But something more must
still be done. To rank, in a correct edition, the several laws
according to their seniority or to the order of the alphabet would,
by no means, be correspondent to the enlarged plan signified by the
resolutions of the house. It is obvious, and it was certainly
expected, that, under each head, the different regulations, however
dispersed, at present, among numerous laws, should, in the digest, be
collected in a natural series, and reduced to a just form. This I
deem an indispensable part of my business.
But the performance of
this indispensable part gives rise to a new question. In what order
should the methodised collections be arranged?
A chronological order
would, from the nature of those collections, be impracticable: an
alphabetical order would be unnatural and unsatisfactory. The order
of legitimate system is the only one, which remains. This order,
therefore, is necessarily brought into my contemplation. My
contemplation of it has been attended with the just degree of
diffidence and solicitude. To form the mass of our laws into a body
compacted and well proportioned, is a task of no common magnitude.
Arduous as it is, the enlarged views of the house of representatives
stimulate me to attempt it. In such an attempt it will not be
dishonourable ― even to
Of this system, I have
begun to sketch the rough outlines. In finishing them, and in filling
them up, I mean to avail myself of all the assistance, which can
possibly be derived from every example set before me. But, at the
same time, I mean to pay implicit deference to none.
The acts of the
legislature of Pennsylvania, though very numerous, compose but a
small proportion of her laws. The common law is a part, and, by far,
the most important part of her system of jurisprudence. Statute
regulations are intended only for those cases, comparatively few, in
which the common law is defective, or to which it is inapplicable: to
that law, those regulations are properly to be considered as a
supplement. A knowledge of that law should, for this reason, precede,
or, at least, accompany the study of those regulations.
"To know what the
common law was before the making of any statute," says my Lord
Coke, in his familiar but expressive manner, "is the very lock
and key to set open the windows of the statute."a To
lay the statute laws before one who knows nothing of the common law,
amounts, frequently, to much the same thing as laying every third or
fourth line of a deed before one who has never seen the residue of
it. It would, therefore, be highly eligible, that, under each head of
the statute law, the common law, relating to it, should be introduced
and explained. This would he a useful commentary on the text of the
statute law, and would, at the same time, form a body of the common
law reduced into a just and regular system.
With such a commentary,
the digest which I shall have the honour of reporting to the house
will be accompanied. The constitution of the United States and that
of Pennsylvania, compose the supreme law of the land: they contain
and they suggest many of the fundamental principles of jurisprudence,
and must have a governing and an extensive influence over almost
every other part of our legal system. They should, therefore, be
explained and understood in the clearest and most distinct manner,
and they should be pursued through their numerous and important,
though remote and widely ramified effects. Hence it is proper, that
they also should be attended with a commentary. These commentaries
will not, however, form a part of my report: they must stand or fall
by their own merit or insignificance.
Another question, of
very considerable importance, has occurred to me: the result of my
reflections upon it, I beg leave to lay before the house.
a 3. Ins.
In what manner should
the digest of the laws of Pennsylvania be composed? Should it imitate
the style of the British acts of parliament and those statutes, which
have been framed upon their model ―
or should it be written in the usual forms of composition?
gentlemen it is well known, that, in England, all hills were
anciently drawn in the form of petitions; that these petitions, with
the king's answer, were entered upon the parliament rolls; and that,
at the end of each parliament, they were reduced into statutes by the
judges. Hence the form, "may it please your majesty, that it may
be enacted" and "be it enacted, &c."
This form, like many
others, has been continued in England long after the reason of it has
ceased. This form, like many others, has been introduced into the
colonies, and, among the rest, into Pennsylvania, where the reason of
it never existed. Thus almost every sentence in our acts of assembly
begins with a "be it enacted." This form, though without
foundation in Pennsylvania, is not, however, without its
inconveniences. To introduce every sentence under the government of a
verb, gives a stiffness ―
to introduce every sentence under the government of the same verb,
gives a monotony as well as stiffness, to the composition. To avoid
the frequent reiteration of those blemishes, the sentences are
lengthened. By being lengthened, they are crowded with multifarious,
sometimes with heterogeneous and disjointed, circumstances and
materials. Hence the obscure, and confused, and embarrassed periods
of a mile, with which the statute books are loaded and disgraced.
But simplicity and
plainness and precision should mark the texture of a law. It claims
the obedience ― it
should be level to the understanding of all.
By the first assembly
of Pennsylvania an act was made for teaching the laws in the
schools."b This noble regulation is countenanced by
the authority and example of the most enlightened nations and men.
Ciceroc informs us, that when he was a boy, the laws of
the twelve tables were learned "ut necessarium carmen," as
a piece of composition at once necessary and entertaining. The
celebrated legislator of the Cretans used all the precautions, which
human prudence could suggest, to inspire the youth with the greatest
respect and attachment to the maxims and customs of the state. This
was what Plato found most admirable in the laws of Minos.
If youth should be
educated in the knowledge and love of the laws: it follows, that the
laws should be proper objects of their attachment, and proper
subjects of their study. Can this be said concerning a statute book
drawn up in the usual style and form? Would any one select such a
composition to form the taste of his son, or to inspire him with a
relish for literary accomplishments? It has been remarked, with truth
as well as wit, that one of the most irksome penalties, which could
be inflicted by an act of parliament, would be, to compel the culprit
to read the statutes at large from the beginning to the end.
But the knowledge of
the laws, useful to youth, is incumbent on those of riper years.
R. O. book. A, p. 22.
c De leg. l.
2. c. 23.
From the manner, in
which other law books, as well as statute laws, are usually written,
it may be supposed that law is, in its nature, unsusceptible of the
same simplicity and clearness as the other sciences. It is high time
that law should be rescued from this injurious imputation. Like the
other sciences, it should now enjoy the advantages of light, which
have resulted from the resurrection of letters; for, like the other
sciences, it has suffered extremely from the thick veil of mystery
spread over it in the dark and scholastick ages.
Both the divinity and
law of those times, says Sir William Blackstone,d were
frittered into logical distinctions, and drawn out into metaphysical
subtilties, with a skill most amazingly artificial. Law in
particular, which (being intended for universal reception) ought to
be a plain rule of action, became a science of the greatest
intricacy; especially when blended with the new and oppressive
refinements ingrafted upon feodal property: which refinements were,
from time to time, gradually introduced by the Norman practitioners,
with a view to supersede (as they did in a great measure) the more
homely, but the more free and intelligible, maxims of distributive
justice among the Saxons.
As were the divinity
and the law, such likewise was the philosophy of the schools during
many ages of darkness and barbarism. It was fruitful of words, but
barren of works, and admirably contrived for drawing a veil over
human ignorance, and hitting a stop to the progress of knowledge.e
But at last the light began to dawn. It has dawned, however, much
slower upon the law,
d Bl. Com,
410. 2. Id. 58.
e Reid. Ess.
than upon religion and
philosophy. "The laws," says the celebrated Beccaria,f
"are always several ages behind the actual improvement of
the nation which they govern." If this observation is true, and
I believe it to be true, with regard to law in general; it is
peculiarly true, and its truth is of peculiar importance, with regard
to criminal law in particular. It is the observation of Sir William
Blackstone, that, in every country of Europe, the criminal is more
rude and imperfect than the civil law. Unfortunate it is that this
should be the case. For on the excellence of the criminal law the
liberty and happiness of the citizens chiefly depend.
We are told by
Montesquieu, that the knowledge, with regard to the surest rules,
observed in criminal judgments, is more interesting to mankind than
any other thing in the universe. We are told by him further, that
liberty can be founded only on the practice of this knowledge. But
how can this knowledge be acquired ―
how can it become the foundation of practice, if the laws, and
particularly the criminal laws, are written in a manner in which they
cannot be clearly known or understood.
Deeply penetrated with
the truth and the force of these remarks, which are supported by the
most respectable authorities, I shall not justly incur the censure of
innovation, if I express my opinion, that the law should be written
in the same manner, which we use when we write on other subjects, or
other sciences. This manner has been already adopted, with success,
in the Constitution of the United States, and in that of
As, however, the
observations, which I have made and quoted, bear particularly upon
the criminal code; I propose to make, in that code, the first
experiment of their justness and efficacy.
The criminal law,
though the most important, is by far the least voluminous part of the
system; and it can be easily formed into a separate report. This I
mean to do. By doing so, I shall have a fair opportunity of
exhibiting a specimen of the manner and the, merits both of my plan
and of its execution.
To the Speaker of the
House of Representatives.
In the execution of
this plan, the Author made very considerable progress. It had been
undertaken, however, under the authority of only one of the houses of
the assembly, without the sanction of the other; and, in the course
of its execution, it was found, that the want of legislative
sanction, and of a provision for making pecuniary compensation to
persons necessarily employed as assistants in a work of so much
labour and importance, joined with the difficulty of obtaining many
useful and necessary books connected with the subject of the work,
had retarded its progress, and thrown considerable impediments in the
way of its completion. An attempt was made to remove these obstacles;
and a bill was passed for that purpose by the house of
representatives; but it was unfortunately negatived by the senate.
The design of framing a digest under the authority of the legislature
was, of course, relinquished. But the Author still contemplated the
execution of a similar design, as a private work; supported only by
his own name; and it occupied, for a long time, his assiduous
attention. He had, in a great degree, prepared the materials; but did
not live to arrange them, and compose the contemplated digest.
From these causes, the
lectures continued in the state, in which they now appear. The Editor
has not thought himself at liberty to make any alterations in the
language of the Author: the lecturing style is, therefore, retained.
He has, however, been obliged to adopt a division not, perhaps,
strictly in unison with that style, but the only one which was in his
power ― that into parts and chapters, according to the subjects.
They were never divided by the Author into distinct lectures; as,
according to his mode of delivering them, they were frequently
attended with recapitulations, and often embraced parts of his
observations on different subjects.
Of the other parts of
the contents of these volumes, the tracts on the legislative
authority of parliament over the colonies, and on the Bank of North
America, were before published; as were also the speech in convention
on 26th November, 1787, and the oration on 4th July, 1788. These,
with the other speeches now published, appear to have been selected
for publication by the Author himself. His charges to grand juries in
the federal courts, the Editor has not thought it proper to insert;
because, as they related generally to the history, powers, and duties
of juries, the contents of them are to be found in the lectures. One,
however, he has selected and inserted, because it contains a concise
and handsome view of the criminal law of the United States, nearly as
it stands at present, and many important observations not to be found
in the other works.
Of the value and merit
of these volumes, the Editor will say nothing. He leaves that subject
to the judgment of those who can estimate them with greater
impartiality. In some parts, perhaps, they want that degree of
polish, which the farther attention and corrections of the Author
might have bestowed on them; and repetitions, which sometimes occur,
and which, in lectures delivered, are not only excusable but proper,
would probably not have been met with, had they been corrected by
himself for the press. On the whole, however, the Editor trusts, that
they will not be thought unworthy, either in style or sentiment, of
the reputation of their Author.
Of the study of the law
in the United States, 3
Of the general
principles of law and obligation, 55
Of the law of nature,
Of the law of nations,
Of municipal law, 179
Of man, as an
Of man, as a member of
Of man, as a member of
a confederation, 319
Of man, as a member of
the great commonwealth of nations, 359
Of government, 383
Comparison of the
constitution of the United States, with that of Great Britain, 425
THE YEARS ONE THOUSAND SEVEN HUNDRED AND NINETY,
ONE THOUSAND SEVEN HUNDRED AND NINETY ONE.
THE STUDY OF THE LAW IN THE UNITED STATES.
I am not unaccustomed to speak in publick, yet, on this occasion, I
rise with much diffidence to address you. The character, in which I
appear, is both important and new. Anxiety and selfdistrust are
natural on my first appearance. These feelings are greatly heightened
by another consideration, which operates with peculiar force. I never
before had the honour of addressing a fair audience. Anxiety
and selfdistrust, in an uncommon degree, are natural, when, for the
first time, I address a fair audience so brilliant as this is. There
is one encouraging reflection, however, which greatly supports me.
The whole of my very respectable audience is as much distinguished by
its politeness, as a part of it is distinguished by its brilliancy.
From that politeness, I shall receive ― what I feel I need ―
an uncommon degree of generous indulgence.
is the remark of an admired historian, that the high character, which
the Grecian commonwealths long possessed among nations, should not be
ascribed solely to their excellence in science and in government.
With regard to these, other nations, he thinks, and particularly that
of which he was writing the history, were entitled to a reputation,
not less exalted and illustrious. But the opinion, he says, of the
superiour endowments and achievements of the Grecians has arisen, in
a considerable degree, from their peculiar felicity in having their
virtues transmitted to posterity by writers, who excelled those of
every other country in abilities and elegance.
when master of the world, envied the good fortune of Achilles, who
had a Homer to celebrate his deeds.
observation, which was applied to Rome by Sallust, and the force of
which appears so strongly from the feelings of Alexander, permit me
to apply, for I can apply it with equal propriety, to the States of
have not, it is true, been long or much known upon the great theatre
of nations: their immature age has not hitherto furnished them with
many occasions of extending their renown to the distant quarters of
the globe. But, in real worth and excellence, I boldly venture to
compare them with the most illustrious commonwealths, which adorn the
records of fame. When some future Xenophon or Thucydides shall arise
to do justice to their virtues and their actions; the glory of
America will rival ― it
will outshine the glory of Greece.
I called upon for my reasons why I deem so highly of the American
character, I would assign them in a very few words ―
That character has been eminently distinguished by the love of
liberty, and the love of law.
rejoice in my appointment to this chair, because it gives me the best
opportunities to discover, to study, to develop, and to communicate
many striking instances, hitherto little known, on which this
distinguished character is founded.
free countries ― in free
countries, especially, that boast the blessing of a common law,
springing warm and spontaneous from the manners of the people ―
Law should be studied and taught as a historical science.
eloquent Rousseau complains, that the origin of nations is much
concealed by the darkness or the distance of antiquity.
many parts of the world, the fact may be as he represents it; and yet
his complaint may be without foundation: for, in many parts of the
world, the origin of nations ought to be buried in oblivion. To
succeeding ages, the knowledge of it would convey neither pleasure
regard to the States of America, I am happy in saying, that a
complaint concerning the uncertainty of their first settlements
cannot be made with propriety or truth; though I must add, that, if
it could be made with propriety or truth, it would be a subject of
the deepest regret.
the just and genuine principles of society can diffuse a lustre round
the establishment of nations; that of the States of America is indeed
illustrious. Fierce oppression, rattling, in her left hand, the
chains of tyranny; and brandishing, in her right hand, the torch of
persecution, drove our predecessors from the coasts of Europe:
liberty, benevolent and serene, pointing to a cornucopia on one side,
and to a branch of olive on the other, invited and conducted them to
the American shores.
discharging the duties of this office, I shall have the pleasure of
presenting to my hearers what, as to the nations in the
Transatlantick world, must be searched for in vain ―
an original compact of a society, on its first arrival in this
section of the globe. How the lawyers, and statesmen, and
antiquarians, and philosophers of Europe would exult, on discovering
a similar monument of the Athenian commonwealth! and yet, perhaps,
the historical monuments of the states of America are not,
intrinsically, less important, or less worthy of attention, than the
historical monuments of the states of Greece. The latter, indeed, are
gilded with the gay decorations of fable and mythology; but the
former are clothed in the neater and more simple garb of freedom and
doctrine of toleration in matters of religion, reasonable though it
certainly is, has not been long known or acknowledged. For its
reception and establishment, where it has been received and
established, the world has been thought to owe much to the
inestimable writings of the celebrated Locke. To the inestimable
writings of that justly celebrated man, let the tribute of applause
be plenteously paid: but while immortal honours are bestowed on the
name and character of Locke; why should an ungracious silence be
observed, with regard to the name and character of Calvert?
it be known, that, before the doctrine of toleration was published in
Europe, the practice of it was established in America. A law in
favour of religious freedom was passed in Maryland, as early as the
year one thousand six hundred and forty nine.
my Lord Baltimore was afterwards urged ―
not by the spirit of freedom ―
to consent that this law should be repealed; with the enlightened
principles of a man and a christian, he had the fortitude to declare,
that he never would assent to the repeal of a law, which protected
the natural rights of men, by ensuring to every one freedom of action
and thought. Indeed, the character of this excellent man has been too
little known. He was truly the father of his country. To the
legislature of Maryland he often recommended a maxim, which deserves
to be written in letters of gold: "By concord a small colony may
grow into a great and renowned nation; but, by dissensions, mighty
and glorious kingdoms have declined and fallen1 into
to that of Calvert, has been the fate of many other valuable
characters in America. They have been too little known. To those
around them, their modest merits have been too familiar, perhaps too
uniform, to attract particular and distinguished attention: by those
at a distance, the mild and peaceful voice of their virtue has not
been heard. But to their memories, justice should be done, as far as
it can be done, by a just and grateful country.
the European temple of fame, William Penn is placed by the side of
Lycurgus. Will America refuse a temple to her patriots and her
heroes? No; she will not. The glorious dome already rises. Its
architecture is of the neatest and chastest order: its dimensions are
spacious: its proportions are elegant and correct. In its front a
number of niches are formed. In some of them statues are placed. On
the left hand of the portal, are the names and figures of Warren,
Montgomery, Mercer. On the right hand, are the names and figures of
Calvert, Penn, Franklin. In the middle, is a niche of larger size,
and decorated with peculiar ornaments. On the left side of it, are
sculptured the trophies of war on the right, the more precious
emblems of peace. Above it, is represented the rising glory of the
United States. It is without a statue and without a name. Beneath it,
in letters very legible, are these words ―
"FOR THE MOST WORTHY." By the enraptured voice of grateful
America ― with the consenting plaudits of an admiring world, the
designation is unanimously made. Late ― very late ― may the niche
General Washington, then President of the United States, was present
when this lecture was delivered. Ed.
while we perform the pleasing duties of gratitude, let not other
duties be disregarded. Illustrious
are displayed to our view, that we may imitate as well as admire.
Before we can be distinguished by the same honours, we must be
distinguished by the same virtues.
are those virtues? They are chiefly the same virtues, which we have
already seen to be descriptive of the American character ―
the love of liberty, and the love of law. But law and liberty cannot
rationally become the objects of our love, unless they first become
the objects of our knowledge. The same course of study, properly
directed, will lead us to the knowledge of both. Indeed, neither of
them can be known, because neither of them can exist, without the
other. Without liberty, law loses its nature and its name, and
becomes oppression. Without law, liberty also loses its nature and
its name, and becomes licentiousness. In denominating, therefore,
that science, by which the knowledge of both is acquired, it is
unnecessary to preserve, in terms, the distinction between them. That
science may be named, as it has been named, the science of law.
science of law should, in some measure, and in some degree, be the
study of every free citizen, and of every free man. Every free
citizen and every free man has duties to perform and rights to claim.
Unless, in some measure, and in some degree, he knows those duties
and those rights, he can never act a just and an independent part.
the general and most important principles of law are not removed to a
very great distance from common apprehension. It has been said of
religion, that though the elephant may swim, yet the lamb may wade in
it. Concerning law, the same observation may be made.
home navigation, carried on along the shores, is more necessary, and
more useful too, than that, which is pursued through the deep and
expanded ocean. A man may be a most excellent coaster, though he
possess not the nautical accomplishments and experience of a Cook.
a science, the law is far from being so disagreeable or so perplexed
a study, as it is frequently supposed to be. Some, indeed, involve
themselves in a thick mist of terms of art; and use a language
unknown to all, but those of the profession. By such, the knowledge
of the law, like the mysteries of some ancient divinity, is confined
to its initiated votaries; as if all others were in duty bound,
blindly and implicitly to obey. But this ought not to be the case.
The knowledge of those rational principles on which the law is
founded, ought, especially in a free government, to be diffused over
the whole community.
a free country, every citizen forms a part of the sovereign power: he
possesses a vote, or takes a still more active part in the business
of the commonwealth. The right and the duty of giving that vote, the
right and the duty of taking that share, are necessarily attended
with the duty of making that business the object of his study and
the United States, every citizen is frequently called upon to act in
this great publick character. He elects the legislative, and he takes
a personal share in the executive and judicial departments of the
nation. It is true, that a man, who wishes to be right, will, with
the official assistance afforded him, be seldom under the necessity
of being wrong: but it is equally true, and it ought not to be
concealed, that the publick duties and the publick rights of every
citizen of the United States loudly demand from him all the time,
which he can prudently spare, and all the means which he can
prudently employ, in order to learn that part, which it is incumbent
on him to act.
the publick mind, one great truth can never be too deeply impressed ―
that the weight of the government of the United States, and of each
state composing the onion, rests on the shoulders of the people. I
express not this sentiment now, as I have never expressed it
heretofore, with a view to flatter:
express it now, as I have always expressed it heretofore, with a far
other and higher aim ― with an aim to excite the people to acquire,
by vigorous and manly exercise, a degree of strength sufficient to
support the weighty burthen, which is laid upon them ―
with an aim to convince them, that their duties rise in strict
proportion to their rights; and that few are able to trace or to
estimate the great danger, in a free government, when the rights of
the people are unexercised, and the still greater danger, when the
rights of the people are ill exercised.
a general election, too few attend to the important consequences of
voting or not voting; and to the consequences, still more important,
of voting right or voting wrong.
rights and the duties of jurors, in the United States, are great and
extensive. No punishment can be inflicted without the intervention of
one ― in much the
greater number of cases, without the intervention of more than one
jury. Is it not of immense consequence to the publick, that those,
who have committed crimes, should not escape with impunity? Is it not
of immense consequence to individuals, that all, except those who
have committed crimes, should be secure from the punishment denounced
against their commission? Is it not, then, of immense consequence to
both, that jurors should possess the spirit of just discernment, to
discriminate between the innocent and the guilty? This spirit of just
discernment requires knowledge of, at least, the general principles
of the law, as well as knowledge of the minute particulars concerning
is true, that, in matters of law, the jurors are entitled to the
assistance of the judges; but it is also true, that, after they
receive it, they have the right of judging for themselves: and is
there not to this right the great corresponding duty of judging
therefore, those who discharge the important and, let me add, the
dignified functions of jurors, should acquire, as far as they
possibly can acquire, a knowledge of the laws of their country: for,
let me add further, the dignity, though not the importance of their
functions, will greatly depend on the abilities; with which they
in the administration of justice ―
that part of government, which comes home most intimately to the
business and the bosoms of men ―
there are judges as well as jurors; those, whose peculiar province it
is to answer questions of law, as well as those, whose peculiar
province it is to answer questions of fact.
many courts ― in many
respectable courts within the United States, the judges are not, and,
for a long time, cannot be gentlemen of professional acquirements.
They may, however, fill their offices usefully and honourably, the
want of professional acquirements notwithstanding. But can they do
this, without a reasonable degree of acquaintance with the law?
have already seen, that, in questions of law, the jurors are entitled
to the assistance of the judges: but can the judges give assistance,
without knowing what answers to make to the questions which the jury
may propose? can those direct others, who themselves know not the
then, those who fill, and those who expect to fill the offices of
judges in courts, not, indeed, supreme, but rising in importance and
in dignity above the appellation of inferiour, ought to make the
strongest efforts in order to obtain a respectable degree of
knowledge in the law.
me ascend to a station more elevated still. In the United States, the
doors of publick honours and publick offices are, on the broad
principles of equal liberty, thrown open to all. A laudable
emulation, an emulation that ought to be encouraged in a free
government, may prompt a man to legislate as well as to decide for
his fellow citizens ― to
legislate, not merely for a single State, but for the most august
Union that has yet been formed on the face of the globe.
not he, who is to supply the deficiencies of the existing law, know
when the existing law is defective? Should not he, who is to
introduce alterations into the existing law, know in what instances
the existing law ought to be altered?
first and governing maxim in the interpretation of a statute is, to
discover the meaning of those, who made it. The first rule,
subservient to the principle of the governing maxim, is, to discover
what the law was, before the statute was made. The inference,
necessarily resulting from the joint operation of the maxim and the
rule, is this, that in explaining a statute, the judges ought to take
it for granted, that those, who made it, knew the antecedent law.
This certainly implies, that a competent knowledge of, at least, the
general principles of law, is of indispensable necessity to those,
who undertake the transcendent office of legislation.
say, a knowledge of the general principles of law for though an
accurate, a minute, and an extensive knowledge of its practice and
particular rules be highly useful; yet I cannot conceive it to be
absolutely requisite to the able discharge of a legislative trust.
this distinction ― and
it is an important one ―
I cannot, perhaps, explain myself better, than by delivering the
sentiments, which were entertained, some centuries ago, by a very
learned and able judge ―
I mean the Lord Chancellor Fortescue.
his excellent book, which he wrote in praise of the laws of England,
he uses a number of arguments with his pupil, the prince of Wales, to
excite him to the study of the law. Of these arguments the prince
feels and acknowledges the full force. "But," says he,
"there is one thing, which agitates my mind in such a manner,
that, like a vessel tossed in the tumultuous ocean, I know not how to
direct my course: it is, that when I recollect the number of years,
which the students of the law employ, before they acquire a
sufficient degree of knowledge, I am apprehensive lest, in studies of
this nature, I should consume the whole of my youth."
relieve his pupil from this anxiety, the chancellor cites a passage
from the writings of Aristotle, to the following purpose: "We
are then supposed to know a thing, when we apprehend its causes and
its principles, as high as its original elements."
maxim the chancellor illustrates, by a reference to several of the
sciences; and then draws this general conclusion. "Whoever knows
the principles and elements of any science, knows the science itself
― generally, at least,
though not completely." This conclusion he then applies to the
science of law. "In the same manner, when you shall become
acquainted with the principles and the elements of law, you may be
denominated a lawyer. It will not be necessary for you, at a great
expense of your time, to scrutinize curious and intricate points of
discussion. I know the quickness of your apprehension, and the
strength of your genius. Though the legal knowledge accumulated in a
series of twenty years is not more than sufficient to qualify one for
being a judge; yet, in one year, you will be able to acquire a degree
of it sufficient for you; without, even in that year, neglecting your
other studies and improvements."3
a law education is necessary for gentlemen intended for the
profession of the law, it would be as ridiculous to prove as to deny.
In all other countries, publick institutions bear a standing
testimony to this truth. Ought this to be the only country without
them? Justinian, who did so much for the Roman law, was, as might
have been expected, uncommonly attentive to form and establish a
proper plan for studying it. All the modern nations of Europe have
admitted the profession of their municipal jurisprudence, into their
universities and other seminaries of liberal education.
England, numerous and ample provisions have been made for this
purpose. For young gentlemen, there are eight houses of chancery,
where they learn the first elements of law. For those more advanced
in their studies, there are four inns of court. "All these
together," says my Lord Coke,4 with conscious
professional pride, "compose the most illustrious university in
the world, for the profession of law." Here lectures have been
read, exercises have been performed, and degrees in the common law
have been conferred, in the same manner as degrees in the civil and
canon law, in other universities.
all these, the Vinerian professorship of law has, not many years ago,
been established in the university of Oxford. Of this professorship,
the celebrated Sir William Blackstone was the first, who filled the
Fort. de Laud. c. 7, 8.
3 Rep. Pref. 20.
question deeply interesting to the American States now presents
itself. Should the elements of a law education, particularly as it
respects publick law, be drawn entirely from another country ―
or should they be drawn, in part, at least, from the constitutions
and governments and laws of the United States, and of the several
States composing the Union?
subject, to one standing where I stand, is not without its delicacy:
let me, however, treat it with the decent but firm freedom, which
befits an independent citizen, and a professor in independent states.
I am justified in saying, that the principles of the constitutions
and governments and laws of the United States, and the republicks, of
which they are formed, are materially different from the principles
of the constitution and government and laws of England; for that is
the only country, from the principles of whose constitution and
government and laws, it will be contended, that the elements of a law
education ought to be drawn. I presume to go further: the principles
of our constitutions and governments and laws are materially better
than the principles of the constitution and government and laws of
me to mention one great principle, the vital principle I may well
call it, which diffuses animation and vigour through all the others.
The principle I mean is this, that the supreme or sovereign power of
the society resides in the citizens at large; and that, therefore,
they always retain the right of abolishing, altering, or amending
their constitution, at whatever time, and in whatever manner, they
shall deem it expedient.
Sir William Blackstone, from whose Commentaries, a performance in
many respects highly valuable, the elements of a foreign law
education would probably be borrowed ―
by Sir William Blackstone, this great and fundamental principle is
treated as a political chimera, existing only in the minds of some
theorists; but, in practice, inconsistent with the dispensation of
any government upon earth. Let us hear his own words.
must be owned that Mr. Locke and other theoretical writers have held,
that "there remains still inherent in the people, a supreme
power to alter the legislative, when they find the legislative act
contrary to the trust reposed in them; for when such trust is abused,
it is thereby forfeited, and devolves to those, who gave it." '
But, however just this conclusion may be in theory, we cannot admit
it, nor argue from it, under any dispensation of government, at
present actually existing. For this devolution of power to the people
at large, includes a dissolution of the whole form of government
established by that people; reduces all the members to their original
state of equality; and, by annihilating the sovereign power, repeals
all positive laws whatsoever before enacted. No human laws will
therefore suppose a case, which at once must destroy all law, and
compel men to build afresh upon a new foundation; nor will they make
provision for so desperate an event, as must render all legal
1 Bl. Com. 161, 162.
yet, even in England, there have been revolutions of government:
there has been one within very little more than a century ago. The
learned Author of the Commentaries admits the fact; but denies it to
be a ground on which any constitutional principle can be established.
the same precise "conjunction of circumstances" should
happen a second time; the revolution of one thousand six hundred and
eighty eight would form a precedent: but were only one or two of the
circumstances, forming that conjunction, to happen again; "the
precedent would fail us."6
1 Bl. Com. 245.
three circumstances, which formed that conjunction, were these: 1. An
endeavour to subvert the constitution, by breaking the original
contract between the king and people. 2. Violation of the fundamental
laws. 3. Withdrawing out of the kingdom.
on this state of things, let us make a supposition ―
not a very foreign one ―
and see the consequences, which would unquestionably follow from the
principles of Sir William Blackstone. Let us suppose, that, on some
occasion, a prince should form a conjunction of only two of the
circumstances; for instance, that he should only violate the
fundamental laws, and endeavour to subvert the constitution: let us
suppose, that, instead of completing the conjunction, by withdrawing
out of his government, he should only employ some forty or fifty
thousand troops to give full efficacy to the two first circumstances:
let us suppose all this ―
and it is surely not unnatural to suppose, that a prince, who shall
form the two first parts of the conjunction, will not, like James the
second, run away from the execution of them ―
I say, suppose all this; and what, on the principles of Sir William
Blackstone, would be the undeniable consequence? In the language of
the Commentaries, "our precedent would fail us."
we have thought, and we have acted upon revolution principles,
without offering them up as sacrifices at the shrine of revolution
should we not teach our children those principles, upon which we
ourselves have thought and acted? Ought we to instil into their
tender minds a theory, especially if unfounded, which is
contradictory to our own practice, built on the most solid
foundation? Why should we reduce them to the cruel dilemma of
condemning, either those principles which they have been taught to
believe, or those persons whom they have been taught to revere?
is true, that the learned Author of the Commentaries concludes this
very passage, by telling us, that "there are inherent, though
latent powers of society, which no climate, no time, no constitution,
no contract can ever destroy or diminish." But what does this
prove? not that revolution principles are, in his opinion, recognized
by the English constitution; but that the English constitution,
whether considered as a law, or as a contract, cannot destroy or
diminish those principles.
is the opinion of many, that the revolution of one thousand six
hundred and eighty eight did more than set a mere precedent, even in
England. But be that as it may: a revolution principle certainly is,
and certainly should be taught as a principle of the constitution of
the United States, and of every State in the Union.
revolution principle ―
that, the sovereign power residing in the people, they may change
their constitution and government whenever they please ―
is not a principle of discord, rancour, or war: it is a principle of
melioration, contentment, and peace. It is a principle not
recommended merely by a flattering theory it is a principle
recommended by happy experience. To the testimony of Pennsylvania ―
to the testimony of the United States I appeal for the truth of what
the course of these lectures, my duty will oblige me to notice some
other important principles, very particularly his definition and
explanation of law itself, in which my sentiments differ from those
of the respectable Author of the Commentaries. It already appears,
that, with regard to the very first principles of government, we set
out from different points of departure.
I have mentioned Sir William Blackstone, let me speak of him
explicitly as it becomes me. I cannot consider him as a zealous
friend of republicanism. One of his survivers or successours in
office has characterized him by the appellation of an antirepublican
lawyer. On the subject of government, I think I can plainly discover
his jealousies and his attachments.
his jealousies, an easy and natural account may be given. In England,
only one specimen of a commonwealth has been exhibited to publick
examination; and that specimen was, indeed, an unfavourable one. On
trial, it was found to be unsound and unsatisfactory. It is not very
surprising that an English lawyer, with an example so inauspicious
before his eyes, should feel a degree of aversion, latent, yet
strong, to a republican government.
account, perhaps equally natural and easy, may he given for his
attachments. With all reigning families, I believe, it is a settled
maxim, that every revolution in government is unjustifiable, except
the single one, which conducted them to the throne. The maxims of the
court have always their diffusive influence. That influence, in
favour of one species of government, might steal imperceptibly upon a
mind, already jealous of another species, viewed as its rival, and as
with all his prejudices concerning government, I have the pleasure of
beholding him, in one conspicuous aspect, as a friend to the rights
of men. To those rights, the author of the beautiful and animated
dissertations concerning juries could not be cold or insensible.
author of the Commentaries, he possessed uncommon merit. His manner
is clear and methodical; his sentiments ―
I speak of them generally ―
are judicious and solid; his language is elegant and pure. In publick
law, however, he should be consulted with a cautious prudence. But,
even in publick law, his principles, when they are not proper objects
of imitation, will furnish excellent materials of contrast. On every
account, therefore, he should be read and studied. He deserves to be
much admired; but he ought not to be implicitly followed.
last admonitory remark should not be confined to Sir William
Blackstone: it ought to be extended to all political writers ―
must I say? ― almost
without exception. This seems a severe sentence: but, if it is just,
it must be pronounced. The cause of liberty, the rights of men
require, that, in a subject essential to that cause and to those
rights, errour should be exposed, in order to be avoided.
foundations of political truth have been laid but lately: the genuine
science of government, to no human science inferiour in importance,
is, indeed, but in its infancy: and the reason of this can be easily
assigned. In the whole annals of the Transatlantick world, it will be
difficult to point out a single instance of its legitimate
institution: I will go further, and say, that, among all the
political writers of the Transatlantick world, it will be difficult
to point out a single model of its unbiassed theory.
celebrated Grotius introduces what he says concerning the interesting
doctrine of sovereignty, with the following information. "Learned
men of our age, each of them handling the argument, rather according
to the present interest of the affairs of his country, than according
to truth, have greatly perplexed that, which, of itself, was not very
clear."7 In this, the learned men of every other age
have resembled those of the age of Grotius.
Gro. b. i. c. 3. e. 5.
it is astonishing, in what intricate mazes politicians and
philosophers have bewildered themselves upon this subject. Systems
have been formed upon systems, all fleeting, because all unfounded.
Sovereignty has sometimes been viewed as a star, which eluded our
investigation by its immeasurable height: sometimes it has been
considered as a sun, which could not be distinctly seen by reason of
its insufferable splendour.
Egypt, the Nile is an object truly striking and grand. Its waters,
rising to a certain height, and spreading to a certain distance, are
the cause of fertility and plenty: swelling higher, and extending
further, they produce devastation and famine. This stupendous stream,
at some times so beneficial, at other times so destructive, has, at
all times, formed a subject of anxious inquiry. To trace its source
has been the unceasing aim of the mighty and the learned. Kings,
attended with all the instruments of strength; sages, furnished with
all the apparatus of philosophy, have engaged, with ardour, in the
curious search; but their most patient and their most powerful
enterprises have been equally vain.
source of the Nile continued still unknown; and because it continued
still unknown, the poets fondly fabled that it was to be found only
in a superiour orb; and, of course, it was worshipped as a divinity.
are told, however, that, at last, the source of the Nile has been
discovered; and that it consists of ―
what might have been supposed before the discovery ―
a collection of springs small, indeed, but pure.
fate of sovereignty has been similar to that of the Nile. Always
magnificent, always interesting to mankind, it has become alternately
their blessing and their curse. Its origin has often been attempted
to be traced. The great and the wise have embarked in the
undertaking; though seldom, it must be owned, with the spirit of just
inquiry; or in the direction, which leads to important discovery. The
source of sovereignty was still concealed beyond some impenetrable
mystery; and, because it was concealed, philosophers and politicians,
in this instance, gravely taught what, in the other, the poets had
fondly fabled, that it must be something more than human: it was
impiously asserted to be divine.
the inquiry has been recommenced with a different spirit, and in a
new direction; and although the discovery of nothing very
astonishing, yet the discovery of something very useful and true, has
been the result. The dread and redoubtable sovereign, when traced to
his ultimate and genuine source, has been found, as he ought to have
been found, in the free and independent man.
truth, so simple and natural, and yet so neglected or despised, may
be appreciated as the first and fundamental principle in the science
the reasons, which I have already offered; others may be suggested,
why the elements of a law education ought to be drawn from our own
constitutions and governments and laws.
every government, which is not altogether despotical, the institution
of youth is of some publick consequence. In a republican government,
it is of the greatest. Of no class of citizens can the education be
of more publick consequence, than that of those, who are destined to
take an active part in publick affairs. Those who have had the
advantage of a law education, are very frequently destined to take
this active part. This deduction clearly shows, that, in a free
government, the principles of a law education are matters of the
greatest publick consequence.
not those principles to be congenial with the principles of
government? By the revolution in the United States, a very great
alteration ― a very
great improvement ― as
we have already seen, has taken place in our system of government:
ought not a proportioned alteration ― ought not a proportioned
improvement to be introduced into our system of law education?
have passed the Red Sea in safety: we have survived a tedious and
dangerous journey through the wilderness: we are now in full and
peaceable possession of the promised land: must we, after all, return
to the flesh pots of Egypt? Is there not danger, that when one nation
teaches, it may, in some instances, give the law to another?
foundation of human happiness, broader and deeper than any that has
heretofore been laid, is now laid in the United States: on that broad
and deep foundation, let it be our pride, as it is our duty, to build
a superstructure of adequate extent and magnificence.
further; many parts of the laws of England can, in their own nature,
have neither force nor application here. Such are all those parts,
which are connected with ecclesiastical jurisdiction and an
ecclesiastical establishment. Such are all those parts, too, which
relate to the monarchical and aristocratick branches of the English
constitution. Every one, who has perused the ponderous volumes of the
law, knows how great a proportion of them is filled with the numerous
and extensive titles relating to those different subjects. Surely
they need not enter into the elements of a law education in the
mean not, however, to exclude them from the subsequent investigation
of those, who shall aspire at the character of accomplished lawyers.
I only mean, that they ought not to be put into the hands of
students, as deserving the same time and the same attention with
other parts, which are to have a practical influence upon their
future conduct in their profession.
numerous regulations, in England, respecting the poor, and the more
artificial refinements and distinctions concerning real estates, must
be known; but known as much in order to be avoided as to be
practised. The study of them, therefore, need not be so minute here
as in England.
many other titles of the English law, similar observations might be
made. The force and the extent of each will increase day after day,
and year after year.
combine in showing, that the foundation, at least, of a
separate, an unbiassed, and an independent law education should be
laid in the United States.
impressed with the importance of this truth, I have undertaken the
difficult, the laborious, and the delicate task of contributing to
lay that foundation. I feel most sensibly the weight of the duty,
which I have engaged to perform. I will not promise to perform it
successfully ― as well
as it might be performed: but I will promise to perform it faithfully
― as well as I can
perform it. I feel its full importance.
may be asked ― I am told
it has been asked ― is
it proper that a judge of the supreme court of the United States
should deliver lectures on law? It will not surely be suspected, that
I deem too lightly of the very dignified and independent office,
which I have the honor to hold, in consequence of the favourable
sentiments entertained concerning me by those, whose favourable
sentiments are indeed an honour. Had I thought that the dignity of
that seat could be disparaged by an alliance with this chair, I would
have spurned it from me. But I thought, and I still think in a very
different manner. By my acceptance of this chair, I think I shall
certainly increase my usefulness, without diminishing my dignity, as
a judge; and I think, that, with equal certainty, I shall, as a
judge, increase my usefulness, I will not say my dignity, in this
chair. He, who is well qualified to teach, is well qualified to
judge; and he, who is well qualified to judge, is well qualified to
teach. Every acquisition of knowledge ― and it is my duty to
acquire much ― can, with
equal facility, and with equal propriety, be applied to either
office: for let it be remembered, that both offices view the same
science as their common object.
interference as to the times of discharging the two offices ―
the only one that strikes me as possible ―
will be carefully avoided.
it may be further asked ―
ought a judge to commit himself by delivering his sentiments in a
lecture? To this question I shall give a very explicit answer: and in
that answer I shall include the determination, which I have taken
both as a professor and as a judge. When I deliver my sentiments from
this chair, they shall be my honest sentiments: when I deliver them
from the bench, they shall be nothing more. In both places I shall
make ― because I mean to
support ― the claim to
integrity: in neither shall I make ―
because, in neither, can I support ―
the claim to infallibility.
house of knowledge is, at present, too small. I feel it my duty, on
many accounts, to enlarge it. But in this, as in every other kind of
architecture, I believe it will be found, that he, who adds much,
must alter some.
the greatest judges, who ever adorned or illuminated a court of
justice, have candidly and cheerfully acknowledged their mistakes;
shall I be afraid of committing myself?
learned and indefatigable Spelman, after all the immense researches,
which enabled him to prepare and publish his Glossary, published it
with this remarkable precaution: "under the protestation of
adding, retracting, correcting, and polishing, as, upon more mature
consideration, shall seem expedient."8
hope I have now shown, that my acceptance of this chair, instead of
diminishing, is calculated to increase my usefulness, as a judge.
Does it derogate from my dignity? By no means, in my opinion.
Sub protestatione de addendo, retrahendo, corrigendo, poliendo, prout
opus fuerit et consultius videbitur. Sir H. Spelman.
things be considered as they really are. As a judge, I can decide
whether property in disputee belongs to the man on my right hand, or
to the man on my left hand. As a judge, I can pass sentence on a
felon or a cheat. By doing both, a judge maybe eminently useful in
preserving peace, and in securing property.
highly deserving security, is, however, not an end, but a means. How
miserable, and how contemptible is that man, who inverts the order of
nature, and makes his property, not a means, but an end!
ought to be preserved in peace; most unquestionably. But is this all?
Ought it not to be improved as well as protected? Look at
individuals: observe them from infancy to youth, from youth to
manhood. Such is the order of Providence with regard to society. It
is in a progressive state, moving on towards perfection. How is this
progressive state to be assisted and accelerated? Principally by
teaching the young "ideas how to shoot," and the young
affections how to move.
intrinsically can be more dignified, than to assist in preparing
tender and ingenuous minds for all the great purposes, for which they
are intended! What, I repeat it, can intrinsically be more dignified,
than to assist in forming a future Cicero, or a future Bacon, without
the vanity of one, and without the meanness of the other!
us see how things have been considered in other ages and in other
of Macedon, a prince highly distinguished by his talents, though not
by his virtues, was fully sensible of the value of science. An heir
was born to his kingdom and his throne. Could any thing be more
interesting to a father and a king? There was, it seems, a
circumstance, which, in his opinion, enhanced the importance even of
this event. His heir was born at a time, when he could receive a most
wrote to Aristotle the following letter: "You are to know that a
son hath been born to us. We thank the gods, not so much for having
bestowed him on us, as for bestowing him, at a time when Aristotle
lives. We assure ourselves, that you will form him a prince worthy to
be our successour, and a king worthy of Macedon."9
Aristotle, accordingly, was devolved the charge of superintending the
education of the young prince, "that he may be taught,"
said Philip, " to avoid those errours, which I have committed,
and of which I now repent."
price Alexander the Great set upon his education, before his mind was
fatally poisoned by the madness of ambition, will appear by a letter
from him to Aristotle, in which we find this sentiment: "I am
not so anxious to appear superiour to the rest of mankind in power,
as in the knowledge of excellent things."10We
see here the impetus of strong ambition; but it had not then taken
its pernicious direction.
1 Lel. L. Phil. 98.
2 Lel, L. Phil. 126.
the most shining periods of the Roman republick, men of the first
distinction made the science of law their publick profession, and
taught it openly in their houses as in so many schools. The first of
these publick professors was Tiberius Coruncanius, who was raised to
the office of chief pontiff the highest in the whole scale of Roman
honours. His example was followed by many distinguished characters,
among whom we find the celebrated names of the two Scevolæ, of
Cato, of Brutus, and of others well known to such as are conversant
with the writers of the classical ages. Even Cicero himself, after he
had been consul of Rome, after he had had kings for his clients,
projected this very employment, as his future "honour and
therefore, we consider the intrinsick or the external dignity of this
chair; we shall find that it is, by no means, beneath an alliance
with the highest offices and the highest characters.
any example, set by me, can be supposed to have the least publick
influence; I hope it will be in raising the care of education to that
high degree of respectability, to which, every where, but especially
in countries that are free, it has the most unimpeachable title.
have been zealous ― I
hope I have not been altogether unsuccessful ―
in contributing the best of my endeavours towards forming a system of
government; I shall rise in importance, if I can be equally
successful ― I will not
be less zealous ― in contributing the best of my endeavours towards
forming a system of education likewise, in the United States. I shall
rise in importance, because I shall rise in usefulness.
Decus et ornamentum. De orat. l. 1. c. 45.
are laws without manners? How can manners be formed, but by a proper
I hear one of the female part of my audience exclaim ―
What is all this to us? We have heard much of societies, of states,
of governments, of laws, and of a law education. Is every thing made
for your sex? Why should not we have a share? Is our sex less honest,
or less virtuous, or less wise than yours?
any of my brethren be kind enough to furnish me with answers to these
questions? ― I must
answer them, it seems, myself? and I mean to answer them most
sex is neither less honest, nor less virtuous, nor less wise than
ours. With regard to the two first of these qualities, a superiority,
on our part, will not be pretended: with regard to the last, a
pretension of superiority cannot be supported.
will name three women; and I will then challenge any of my brethren
to name three men superiour to them in vigour and extent of
abilities. My female champions are, Semiramis of Nineveh; Zenobia,
the queen of the East; and Elizabeth of England. I believe it will
readily be owned, that three men of superiour active talents cannot
The ancient wisdom of the best times did always make a just
complaint, that states were too busy with their laws; and too
negligent in point of education. 2. Ld. Bacon 423.
will please, however, to take notice, that the issue, upon which I
put the characters of these three ladies, is not that they were
accomplished; it is, that they were able women.
distinction immediately reminds you, that a woman may be an able,
without being an accomplished female character.
this latter view, I did not produce the three female characters I
have mentioned. I produced them as women, merely of distinguished
abilities ― of abilities
equal to those displayed by the most able of our sex.
would you wish to be tried by the qualities of our sex? I will refer
you to a more proper standard ―
that of your own.
the three able characters, I have mentioned, had, I think, too much
of the masculine in them. Perhaps I can conjecture the reason. Might
it not be owing, in a great measure ―
might it not be owing altogether to the masculine employments, to
which they devoted themselves?
of them were able warriours: all of them were able queens; but in all
of them, we feel and we regret the loss of the lovely and
accomplished woman: and let me assure you, that, in the estimation of
our sex, the loss of the lovely and accomplished woman is
irreparable, even when she is lost in the queen.
these reasons, I doubt much, whether it would be proper that you
should undertake the management of publick affairs. You have, indeed,
heard much of publick government and publick law: but these things
were not made for themselves: they were made for something better;
and of that something better, you form the better part ―
I mean society ― I mean
particularly domestick society: there the lovely and accomplished
woman shines with superiour lustre.
some politicians, society has been considered as only the scaffolding
of government; very improperly, in my judgment. In the just order of
things, government is the scaffolding of society: and if society
could be built and kept entire without government, the scaffolding
might be thrown down, without the least inconvenience or cause of
is, indeed, highly necessary; but it is highly necessary to a fallen
state. Had man continued innocent, society, without the aids of
government, would have shed its benign influence even over the bowers
those bowers, how finely was your sex adapted! But let it be
observed, that every thing else was finished, before Heaven's "last
best gift" was introduced: let it be also observed, that, in the
pure and perfect commencement of society, there was a striking
difference between the only two persons, who composed it. His "large
fair front and eye sublime" declared that, "for
contemplation and for valour he was formed."
"For softness, she, and sweet attractive grace.
Grace was in all her steps, Heav'n in her eye;
In every gesture, dignity and love.
A thousand decencies unceasing flow'd
From all her
words and actions, mixt with ―
accomplishments indicated her destination. Female beauty is the
expression of female virtue. The purest complexion, the finest
features, the most elegant shape are uninteresting and insipid,
unless we can discover, by them, the emotions of the mind. How
beautiful and engaging, on the other hand, are the features, the
looks, and the gestures, while they disclose modesty, sensibility,
and every sweet and tender affection When these appear, there is a
"Soul upon the countenance."
observations enhance the value of beauty; and show, that to possess
and to admire it, is to possess and to admire the exhibition of the
finest qualities, intellectual and moral. These observations do more
they show how beauty may be acquired, and improved, and preserved.
When the beauties of the mind are cultivated, the countenance becomes
beautifully eloquent in expressing them.
know very well, that mere complexion and shape enter into the
composition of beauty: but they form beauty only of a lower order.
Separate them from animation ― separate them from sensibility ―
separate them from virtue: what are they? The ingredients that
compose a beautiful picture or a beautiful statue. I say too much;
for the painters and the statuaries know, that expression is the soul
of mimick as well as of real life.
complexion and shape will not supply the place of the higher orders
of beauty; so those higher orders have an independent existence,
after the inferiour influence of complexion and shape are gone.
Though the bloom of youth be faded; though the impressions of time be
distinctly marked; yet, while the countenance continues to be
enlivened by the beaming emanations of the mind, it will produce, in
every beholder possessed of sensibility and taste, an effect far more
pleasing, and far more lasting, than can be produced by the prettiest
piece of uninformed nature, however florid, however regular, and
many purposes may be served at once, if things are done in the proper
way! I have been giving a recipe for the improvement and preservation
of female beauty; but I find that I have, at the same time, been
delivering instructions for the culture and refinement of female
virtue; and have been pointing at the important purposes, which
female virtue is fitted and intended to accomplish.
nature evinces her designs by her works; you were destined to
embellish, to refine, and to exalt the pleasures and virtues of
protect and to improve social life, is, as we have seen, the end of
government and law. If, therefore, you have no share in the
formation, you have a most intimate connexion with the effects, of a
good system of law and government.
plan of education, which will produce, or promote, or preserve such a
system, is, consequently, an object to you peculiarly important.
if you would see such a plan carried into complete effect, you must,
my amiable hearers, give it your powerful assistance. The pleasing
task of forming your daughters is almost solely yours. In my plan of
education for your sons, I must solicit you to cooperate. Their
virtues, in a certain proportion ―
the refinement of their virtues, in a much greater proportion, must
be moulded on your example.
your sex, too, there is a natural, an easy, and, often, a pure flow
of diction, which lays the best foundation for that eloquence, which,
in a free country, is so important to ours.
style of some of the finest orators of antiquity was originally
formed on that of their mothers, or of other ladies, to whose
acquaintance they had the honour of being introduced.
have already mentioned the two Scevolæ
among the illustrious Roman characters. One of them was married to
Lælia, a lady, whose
virtues and accomplishments rendered her one of the principal
ornaments of Rome. She possessed the elegance of language in so
eminent a degree, that the first speakers of the age were ambitious
of her company. The graces of her unstudied elocution were the purest
model, by which they could refine their own.
was in the number of those, who improved by the privilege of her
conversation. In his writings, he speaks in terms of the warmest
praise concerning her singular talents. He mentions also the
conversation of her daughters and grand daughters, as deserving
province of early education by the female sex, was deemed, in Rome,
an employment of so much dignity, that ladies of the first rank did
not disdain it. We find the names of Aurelia and Attia, the mothers
of Julius Cæsar and
of Augustus, enumerated in the list of these honourable patronesses
example of the highly accomplished Cornelia, the daughter of the
great Africanus, and the mother of the Gracchi, deserves uncommon
attention. She shone, with singular lustre, in all those endowments
and virtues that can dignify the female character.
was, one day, visited by a lady of Campania, who was extremely fond
of dress and ornament. This lady, after having displayed some very
rich jewels of her own, expressed a wish to be favoured with the view
of those which Cornelia had; expecting to see some very superb ones,
in the toilet of a lady of such distinguished birth and character.
Cornelia diverted the conversation, till her sons came into the room:
"These are my jewels," said she, presenting them to the
had seen her letters: his expressions concerning them are very
remarkable. "I have read," says he, "the letters of
Cornelia, the mother of the Gracchi; and it appears, that her sons
were not so much nourished by the milk, as formed by the style of
Legimus epistolas Corneliæ, matris Gracchorum: apparet filios
non tam in gremie educatos, quam in sermone matris. Cic. de clar,
orat, c. 58.
see now, my fair and amiable hearers, how deeply and nearly
interested you are in a proper plan of law education. By some of you,
whom I know to be well qualified for taking in it the share, which I
have described, that share will be taken. By the younger part of you,
the good effects of such a plan will, I hope, be participated: for
those of my pupils, who themselves shall become most estimable, will
treat you with the highest degree of estimation.
me, at this time, to address, in a very few words, the younger and
more inexperienced part of those who attend my lectures ―
I say the younger and more inexperienced part; because my lectures
are honoured with the presence of some, whose learning, talents, and
experience fit them for communicating instead of receiving
instruction here. For the honour of their presence, I must consider
myself indebted to the importance of my subject; and to a desire,
generous and enlightened, of countenancing and encouraging every
attempt, however feeble, to diffuse knowledge on a subject so
have seen, my young friends, in what a high point of view I consider
your education. Is this on your own account? Partly it is ―
that you may be great and good men. But solely it is not; for more
extended hopes are entertained concerning you: you are designated by
your education, and by your country, to be great and good citizens.
no other part of the world, and in no former period, even in this
part of it, have youth ever beheld so glorious and so sublime a
prospect before them. Your country is already respectable for its
numbers; it is free; it is enlightened; it is flourishing; it is
happy: in numbers; in liberty; in knowledge; in prosperity; in
happiness it is receiving great and rapid accessions. Its honours are
already beginning to bud: in a few years, they will "blossom
thick" upon you. You ought certainly, by proper culture, to
qualify yourselves in such a manner, that when the blossoms fade and
fall, the fruit may begin to appear. Remember that, in a free
government, every honour implies a trust; that every trust implies a
duty; and that every duty ought to be performed.
mean not, that such of you as are designed for the practice of the
law, should be inattentive to the emoluments of your profession; but
I mean that you should consider it as something higher than a mere
instrument of private gain. By being fitted for higher purposes, it
will not be less fit, it will be more fit for accomplishing this.
is peculiarly necessary, that you should, as soon as possible, form
proper conceptions of what ought to be your objects in your course of
study. Let them not be fixed too low: the higher your aims, the
higher your attainments will be. To assist you in fixing those aims,
let me lay before you the sentiments of a writer, who wrote on some
subjects most excellently, and on others most contemptibly ―
I mean Lord Bolingbroke. When he wrote on politicks or business, he
wrote well; because he wrote on what he knew: when he wrote
concerning religion, he wrote ill; because he wrote concerning that,
of which he was ignorant. The passage I am about to quote to you is
vouched by the respectable authority of Lord Kaims, who considered
it, and justly, as a master piece of expression and thought.
might instance," says he, "in other professions, the
obligations men lie under of applying themselves to certain parts of
history; and I can hardly forbear doing it in that of the law, in its
nature, the noblest and most beneficial to mankind, in its abuse and
debasement, the most sordid and the most pernicious. A lawyer now is
nothing more, I speak of ninety nine in a hundred at least" (the
proportion in this country, I believe, is much smaller) "to use
some of Tully's words, "nisi liguleius quidam cautus, et acutus
cantor formularum, auceps syllabarum:" but there have been
lawyers that were orators, philosophers, historians: there have been
Bacons and Clarendons. There will be none such any more, till, in
some better age" (I hope that better age has found you, my young
friends) "true ambition or the love of fame prevail over
avarice; and till men find leisure and encouragement for the exercise
of this profession, by climbing up to the vantage ground, so my Lord
Bacon calls it, of science,14 instead of groveling all
their lives below, in a mean but gainful application to all the
little arts of chicane. Till this happen, the profession of law will
scarce deserve to be ranked among the learned professions: and
whenever it happens, one of the vantage grounds, to which men must
climb, is metaphysical, and the other, historical knowledge." By
metaphysical knowledge, his lordship evidently means the philosophy
of the human mind; for he goes on in this manner. "They must pry
into the secret recesses of the human heart, and become well
acquainted with the whole moral world, that they may discover the
abstract reason of all laws: and they must trace the laws of
particular states, especially of their own, from the first rough
sketches to the more perfect draughts; from the first causes or
occasions that produced them, through all the effects, good and bad,
that they produced."15
It is not possible to discover the more remote, and deeper parts of
any science, if you stand but upon the level of the same science, and
ascend not to a higher science. 2. Ld. Bac. 432.
Boling. of the Study of History. let. 5. p.149.
my young friends, are the great prospects before you; and such is the
general outline of those studies, by which you will be prepared to
realize them. Suffer me to recommend most earnestly this outline to
the utmost degree of your attention. It comes to you supported with
all the countenance and authority of Bacon, Bolingbroke, Kaims ―
two of them consummate in the practice, as well as in the knowledge
of the law ― all of them
eminent judges of men, of business, and of literature; and all
distinguished by the accomplishments of an active, as well as those
of a contemplative life. The propriety, the force, and the
application of their sentiments will be gradually unfolded, fully
explained, and warmly urged to you in the course of my lectures.
is by no means an easy matter to form, to digest, and to arrange a
plan of lectures, on a subject so various and so extensive as that of
law. With great deference to some of you, with anxious zeal for the
information of others, I lay before you the following analysis:
reserving, however, to myself, the full right and force of the
protestation, which I have already borrowed
Sir Henry Spelman, of adding, retracting, correcting, and polishing,
as, on more mature consideration, shall appear to me to be
Some alterations, as the reader will observe, were afterwards made in
the plan; but they are neither numerous nor important and need not be
here particularized. Ed.
begin with the general principles of law and obligation. These I
shall investigate fully and minutely; because they are the basis of
every legal system; and because they have been much misrepresented,
or much misunderstood.
I shall proceed to give you a concise and very general view of the
law of nature, of the law of nations, and of municipal law.
shall then consider man, who is the subject of all, and is the author
as well as the subject of the last, and part of the second of these
species of law. This great title of my plan, dignified and
interesting as it is, must be treated in a very cursory manner in
this course. I will, however, select some of the great truths which
seem best adapted to a system of law. I will view man as an
individual, as a member of society, as a member of a confederation,
and as a part of the great commonwealth of nations.
situation, under the third relation, is, in a great measure, new;
and, to an American, peculiarly important: It will, therefore, merit
and obtain peculiar attention.
proper discussion of this title will draw on a discussion of the law
of nations, under an aspect, almost
new. How far, on the principles of the confederation, does the law of
nations become the municipal law of the United States? The greatness
of this question is selfevident: it would be very unwise, at present,
even to hint at an answer.
having examined these important preparatory topicks, I shall trace
the causes, the origin, the progress, the history, the kinds, the
parts, and the properties of government.
this title, I shall have occasion to treat concerning legislative,
executive, and judicial power; and to investigate and compare the
simple and the mixt species of governments and constitutions ―
one, particularly, that is simple in its principle, though
diversified in its form and operations.
will lead me to a particular examination of the constitution and
government of the United States, of Pennsylvania, and of her sister
this time, we shall be qualified to enter, with proper advantage,
upon the illustration of the different parts of our municipal law.
The common law is the first great object, which will here present
itself. I shall think it my duty to investigate very carefully its
principles, its nature, and its history; particularly the great event
of its transmigration from Europe to America; and the subsequent
juridical history of the American States.
municipal law, I shall consider under two great divisions. Under the
first, I shall treat of the law, as it relates to persons: under the
second, I shall treat of it, as it relates to things.
division of the United States into circuits, districts, states,
counties, and townships will, probably, be introduced here, with some
remarks concerning the causes, the operation, and the consequences of
considering the law as it relates to persons, the legislative
department of the United States will occupy the first place; the
executive department, the second; and the judicial department, the
the first, the institution and powers of congress will come into
view. The principles on which the senate and house of representatives
are separately established, will be carefully discriminated; and the
necessary remarks will be made on the great doctrine of
representation. The importance and the manner of legislation will
also claim a portion of our regard.
considering the executive authority of the United States, the
appointment, the powers, and the duties of the president, will first
attract our notice. We will then proceed to consider the number and
the nature of the subordinate executive departments. We shall here
have an opportunity of taking a very general view of the civil,
commercial, fiscal, maritime, and military establishments of the
we come to the judicial department, our attention will be first drawn
to the supreme court of the United States. Its establishment and its
jurisdiction will be particularly considered; as also the
establishment and jurisdiction of the circuit and district courts.
the nature, the history, and the jurisdiction of courts in general;
and the powers and duties of judges, juries, sheriffs, coroners,
counsellors, and attornies will be naturally introduced.
this may be the proper place, likewise, for some general observations
on the nature and philosophy of evidence; a proper system of which is
the greatest desideratum in the law.
investigation of the different parts of the constitution and
government of the United States, will lay the foundation of a very
interesting parallel between them and the pride of Europe ―
the British constitution.
the consideration of the legislative, executive, and judicial
departments of the sister states can, without intricacy or confusion,
be severally arranged under the three corresponding articles in the
constitution of the United States; the parts of my plan will be
considerably reduced in their number. I hope, but I am not confident,
that this can be done. Upon this, as upon every other part of my
plan, I shall be thankful for advice.
politick and inferiour societies will be described and distinguished.
relations of private and of domestick life will pass in review before
us; and after these, the rights and duties of citizens will come
the important principles of election will receive the merited
rights, privileges, and disabilities of aliens will then be examined.
would it be, if the great division of the law, which relates to
persons, could be closed here. But it cannot be done. We are under
the sad necessity of viewing law as sometimes violated, and man as
sometimes guilty. Hence the ungracious doctrine of punishment and
will introduce this disagreeable part of my system with general
observations concerning the nature of crimes, and the necessity and
the proportion of punishments next, I will descend into a particular
enumeration and description of each. and I will afterwards point out
the different steps prescribed by the law for apprehending,
detaining, trying, and punishing offenders.
warrants, arrests, attachments, bail, commitments, imprisonment,
appeals, informations, indictments, presentments, process,
arraignments, pleas, trials, verdicts, judgments, attainders,
pardons, forfeitures, corruption of blood, and executions will be
regard to criminal law, this observation may be made even in a
summary: it greatly needs reformation. In the United States, the
seeds of reformation are sown.
to the second great division of our municipal law, which relates to
things; it may be all comprehended under one word ―
property. Claims, it is true, may arise from a variety of sources,
almost infinite: but the declaration of every claim concludes by
alleging a damage or a demand; and the decision of every successful
claim concludes by awarding a satisfaction or a restitution in
shall trace the history of property from its lowest rude beginnings
to its highest artificial refinements; and, by that means, shall have
an opportunity of pointing out the defects of the first, and the
excesses of the last.
is of two kinds; publick and private. Under publick property, common
highways, common bridges, common rivers, common ports are included.
In the United States, and in the states composing the Union, there is
much land belonging to the publick.
property is divided into two kinds; personal and real: things
moveable are comprehended under the first division: things
immoveable, under the second.
in real property are measured by their duration. An estate of the
greatest duration, is that which is in fee, or "to a man and his
heirs," in the language of the common law. Real property of
shorter duration is known by the names of estates tail, estates in
tail after possibility of issue extinct, estates by the curtesy of
England, estates in dower, estates for life, estates for years,
estates by sufferance, and estates at will.
may be either absolute or conditional. Under the title of conditional
estates, the excellent law of Pennsylvania with regard to mortgages
will deserve particular consideration.
may be in possession or in expectancy. Under the last head,
reversions, remainders, vested and contingent, and executory devises
will be treated.
may be joint or cotemporary, as well as separate and successive. Here
we will treat concerning coparceners, partners, joint tenants, and
tenants in common.
may be acquired by occupancy, conveyance, descent, succession, will,
custom, forfeiture, judgment in a court of justice. In much the
greatest number of instances, the acquisition of property by one is
accompanied with the transfer of it by another.
are by matter of record; as a fine, a common recovery, a deed
enrolled: or by matter in pais; as livery, deed: here the nature and
different kinds of deeds, at common law, and by virtue of statutes,
will be particularly considered.
may consist of things in possession, or of things in action.
money, cattle, are instances of the first kind; debts, rights of
damages, and rights of action are in. stances of the second kind.
are prosecuted by suit.
have heard much concerning the forms of process, and proceedings, and
pleadings. Much has been written in praise, and much has been written
in ridicule, of this part of law learning. It has certainly been
abused: in some hands, it has become, and daily does become
ridiculous. And what is there that has been exempted from a similar
fate! religion herself, elegant and simple as she is, yet, when
dressed in the tawdry or tattered robes put upon her by the false
taste of her injudicious friends, assumes an awkward and ridiculous
has experienced the same treatment with her elder sister. But though
the learning with regard to pleas and pleading has been abused, it
may certainly be employed for the most excellent purposes.
properly directed and properly used, the science of well pleading is,
indeed, in the language of Littleton, "one of the most
honourable, laudable, and profitable things in our law."17
Let me also adduce, in its favour, the weighty testimony of Earl
Mansfield.18 "The substantial rules of pleading,"
says this very able judge, "are founded in strong sense, and in
the soundest and closest logick; and so appear when well understood
and explained: though, by being misunderstood and misapplied, they
are too often made use of as the instruments of chicane."
me to add, that some of the forms of writs and pleas, particularly
those that are most ancient, are models of correct composition, as
well as of just sentiment.
Litt. s. 534.
1. Burr. 319.
history of a suit at law, from its commencement, through all the
different steps of its progress, to its conclusion, presents an
object very interesting to a mind sensible to the beauty of strict
and accurate arrangement. The dispositions of the drama are not made
with more exactness and art. Every thing is done by the proper
persons, at the proper time, in the proper place, in the proper
order, and in the proper form.
history may be comprised under the following titles ―
original writ, process, return, appearance ―
in person, by guardian, by next friend, by attorney ―
bail, declaration, profert, over, imparlance, continuance, pleas ―
in abatement and bar ―
replication, rejoinder, issue, demurrer, trial, demurrer to evidence,
bill of exceptions, verdict, new trial, judgment, appeal, writ of
THE GENERAL PRINCIPLES OF LAW AND OBLIGATION.
proportion, and fitness pervade the universe. Around us, we see;
within us, we feel; above us, we admire a rule, from which a
deviation cannot, or should not, or will not be made.
the inanimate part of the creation, are impressed the continued
energies of motion and of attraction, and other energies, varied and
yet uniform, all designated and ascertained. Animated nature is under
a government suited to every genus, to every species, and to every
individual, of which it consists. Man, the nexus utriusque mundi,
composed of a body and a soul, possessed of faculties intellectual
and moral, finds or makes a system of regulations, by which his
various and important nature, in every period of his existence, and
in every situation, in which he can be placed, may be preserved,
improved, and perfected. The celestial as well as the terrestrial
world knows its exalted but prescribed course. This angels and the
spirits of the just, made perfect, do "clearly behold, and
without any swerving observe." Let humble reverence attend us as
we proceed. The great and incomprehensible Author, and Preserver, and
Ruler of all things ― he
himself works not without an eternal decree.
― and so universal is law. "Her seat," to use the sublime
language of the excellent Hooker,19 "is the bosom of
God; her voice, the harmony of the world; all things in heaven and
earth do her homage; the very least as feeling her care, and the
greatest as not exempted from her power. Angels and men, creatures of
every condition, though each in different sort and manner, yet all
with uniform consent, admiring her as the mother of their peace and
we descend to the consideration of the several kinds and parts of
this science, so dignified and so diversified, it will be proper, and
it will be useful, to contemplate it in one general and comprehensive
view; and to select some of its leading and luminous properties,
which will serve to guide and enlighten us in that long and arduous
journey, which we now undertake.
may, perhaps, be expected, that I should be girt with a regular
definition of law. I am not insensible of the use, but, at the same
time, I am not insensible of the abuse of definitions. In their very
nature, they are not calculated to extend the acquisition of
knowledge, though they may be well fitted to ascertain and guard the
limits of that knowledge, which is already acquired. By definitions,
if made with accuracy ―
and consummate accuracy ought to be their indispensable
ambiguities in expression, and different meanings of the same term,
the most plentiful sources of errour and of fallacy in the reasoning
art, may be prevented; or, if that cannot be done, may be detected.
But, on the other hand, they may be carried too far, and, unless
restrained by the severest discipline, they may produce much
confusion and mischief in the very stations, which they are placed to
have heard much of the celebrated distribution of things into genera
and species. On that distribution, Aristotle undertook the arduous
task of resolving all reasoning into its primary elements; and he
erected, or thought he erected, on a single axiom, a larger system of
abstract truths, than were before invented or perfected by any other
philosopher. The axiom, from which he sets out, and in which the
whole terminates, is, that whatever is predicated of a genus, may be
predicated of every species contained under that genus, and of every
individual contained under every such species.20 On that
distribution likewise, the very essence of scientifick definition
depends: for a definition, strictly and logically regular, "must
express the genus of the thing defined, and the specifick difference,
by which that thing is distinguished from every other species
belonging to that genus."21
this definition of a definition ― if I may be pardoned for the
apparent play upon the word ― it evidently appears that nothing can
he defined, which does not denote a species; because that only, which
denotes a species, can have a specifick difference.
1. Gill. (4to.) 690.
Reid's Ess. Int. 10, 11.
further: a specifick difference may, in fact, exist; and yet language
may furnish us with no words to express it. Blue is a species of
colour; but how shall we express the specifick difference, by which
blue is distinguished from green?
expressions, which signify things simple, and void of all
composition, are, from the very force of the terms, unsusceptible of
definition. It was one of the capital defects of Aristotle's
philosophy, that he attempted and pretended to define the simplest
it may be worth while to note a difference between our own abstract
notions, and objects of nature. The former are the productions of our
own minds; we can therefore define and divide them, and distinctly
designate their limits. But the latter run so much into one another,
and their essences, which discriminate them, are so subtile and
latent, that it is always difficult, often impossible, to define or
divide them with the necessary precision. We are in danger of
circumscribing nature within the bounds of our own notions, formed,
frequently, on a partial or defective view of the object before us.
Fettered thus at our outset, we are restrained in our progress, and
govern the course of our inquiries, not by the extent or variety of
our subject, but by our own preconceived apprehensions concerning it.
distinction between the objects of nature and our own abstract
notions suggests a practical inference. Definitions and divisions in
municipal law, the creature of man, may be more useful, because more
adequate and more correct, than in natural objects.
some philosophers, definition and division are considered as the two
great nerves of science. But unless they are marked by the purest
precision, the fullest comprehension, and the most chastised justness
of thought, they will perplex, instead of unfolding ―
they will darken, instead of illustrating, what is meant to be
divided or defined. A defect or inaccuracy, much more an impropriety,
in a definition or division, more especially of a first principle,
will spread confusion, distraction, and contradictions over the
remotest parts of the most extended system.
in science, as well as in life, proceed more frequently from wrong
principles, than from ill drawn consequences. Prava regula prima
may be the parent of the most fatal enormities.
higher an edifice is raised, the more compactly it is built, the more
precisely it is carried up in a just direction ―
in proportion to all these excellencies, a rent in the foundation
will increase and become dangerous.
case is the same with a radical errour at the foundation of a system.
The more accurately and the more ingeniously men reason, and the
farther they pursue their reasonings, from false principles, the more
numerous and the more inveterate will their inconsistencies, nay,
their absurdities be. One advantage, however, will result ―
those absurdities and those inconsistencies will be more easily
traced to their proper source. When the string of a musical
instrument has a fault only in one place, you know immediately how
and where to find and correct it.
by these admonitory truths, I hesitate, at present, to give a
definition of law. My hesitation is increased by the fate of the far
greatest number of those, who have hitherto attempted it. Many, as it
is natural to suppose, and laboured have been the efforts to infold
law within this scientifick circle; but little satisfaction ―
little instruction has been the result. Almost every writer, sensible
of the defects, the inaccuracies, or the improprieties of the
definitions that have gone before him, has endeavoured to supply
their place with something, in his own opinion, more proper, more
accurate, and more complete. He has been treated by his successours,
as his predecessors have been treated by him: and his definition has
had only the effect of adding one more to the lengthy languid list.
This I know, because I have taken the trouble to read them in great
numbers; but because I have taken the trouble to read them, I will
spare you the trouble of hearing them ―
at least, the greatest part of them.
of them, indeed, have a claim to attention one, in particular, will
demand it, for reasons striking and powerful ―
I mean that given by the Commentator on the laws of England.
us proceed carefully, patiently, and minutely to examine it. If I am
not deceived, the examination will richly compensate all the time,
and trouble, and investigation, that will be allotted to it; for it
will be uncommonly fruitful in the principles, and in the
consequences of the great truths and important disquisitions, which
it will lead in review before us. "Law," says he, "in
its most general and comprehensive sense, signifies a rule of
action."22 In its proper signification, a rule is an
instrument, by which a right line ―
the shortest and truest of all ―
may be drawn from one point to another. In its moral or figurative
sense, it denotes a principle or power, that directs a man surely and
concisely to attain the end, which he proposes.
1. Bl. Com. 38.
is called a rule, in order to distinguish it from a23
sudden, a transient, or a particular order: uniformity, permanency,
stability, characterize a law.
1. Bl. Com. 44.
law is called a rule, to denote that it carries along with it a power
and principle of obligation. Concerning the nature and the cause of
obligation, much ingenious disputation has been held by philosophers
and writers on jurisprudence. Indeed the sentiments entertained
concerning it have been so various, that an account of them would, in
the estimation of my Lord Kaims, be a "delicate historical
interesting subject will claim and obtain our attention, next after
what we have to say concerning law in general.
we speak of a rule with regard to human conduct, we imply two things.
1. That we are susceptible of direction. 2. That, in our conduct, we
propose an end. The brute creation act not from design. They eat,
they drink, they retreat from the inclemencies of the weather,
without considering what their actions will ultimately produce. But
we have faculties, which enable us to trace the connexion between
actions and their effects; and our actions are nothing else but the
steps which we take, or the means which we employ, to carry into
execution the effects which we intend.
I think, conveys a fuller and stronger conception of law, when he
tells us, that "it assigns unto each thing the kind, that it
moderates the force and power, that it appoints the form and measure
of working."24 Not the direction merely, but the kind
also, the energy, and the proportion of actions is suggested in this
are of opinion, that law should be defined25 "a rule
of acting or not acting; " because actions may be forbidden as
well as commanded. But the same excellent writer, whom I have just
now cited, gives a very proper answer to this opinion, and shows the
addition to be unnecessary, by finely pursuing the metaphor, which we
have already mentioned. "We must not suppose that there needeth
one rule to know the good, and another to know the evil by. For he
that knoweth what is straight, doth even thereby discern what is
crooked. Goodness in actions is like unto straightness; wherefore
that which is well done, we term right."26
this dry description of the literal and metaphorical meaning of a
rule, permit me to relax your strained attention by a critical
remark. In the philosophy of the human mind, it is impossible
altogether to avoid metaphorical expressions. Our first and most
familiar notions are suggested by material objects; and we cannot
speak intelligibly of those that are immaterial, without continual
allusions to matter and the qualities of matter.
Daws. Orig. Laws, 4.14.
in teaching moral science, the use of metaphors is not only
necessary, but, if prudent, and honest, and guarded, it is highly
advantageous. Nature has endowed us with the faculty of imagination,
that we may be enabled to throw warming as well as enlightening rays
upon truth ― to
embellish, to recommend, and to enforce it. Truth may, indeed, by
reasoning, be rendered evident to the understanding; but it cannot
reach the heart, unless by means of the imagination. To the
imagination metaphors are addressed.
this short excursion into the field of criticism, let us return to
our legal tract. Law is a rule "prescribed." A simple
resolution, confined within the bosom of the legislator, without
being notified, in some fit manner, to those for whose conduct it is
to form a rule, can never, with propriety, be termed a law.
are many ways by which laws may be made sufficiently known. They may
be printed and published. Written copies of them may be deposited in
publick libraries, or other places, where every one interested may
have an opportunity of perusing them. They may be proclaimed in
general meetings of the people. The knowledge of them may be
disseminated by long and universal practice. "Confirmed custom,"
says a writer on Roman jurisprudence, "is deservedly considered
as a law. For since written laws wind us for no other reason than
because they are received by the judgment of the people; those laws,
which the people have approved, without writing, are also justly
obligatory on all. For where is the difference, whether the people
declare their will by their suffrage, or by their conduct? This kind
of law is said to be established by