Part 7

There are two sorts of analysis, each proper in its place. The one _philosophical_, by which the different parts of a subject are so arranged, as to exhibit in distinct groups those things that depend on the same or like principles, and such as are marked by characteristic points of resemblance; giving a sort of honorary precedence to the most important. The other sort of analysis may be termed _logical_. It is that method by which different propositions are so arranged, as that no one of them shall ever be brought under consideration, until all others which may be necessary to the right understanding of that one, have been established and explained. Of this last description sire Euclid's elements, in which it is interesting to observe that no one proposition could with propriety be made to change its place; each one depending for its demonstration, directly or indirectly, upon all that have gone before.

Blackstone's Commentaries may be cited as an example of _philosophical_ analysis. He has indeed been careful to avoid perplexing his reader, through the want of a strictly _logical_ arrangement, by dealing chiefly in generalities, and never descending to such particulars as might be unintelligible for want of a knowledge of matters not yet treated of. This I take to be the reason why his work has been characterized as being "less an institute of law, than a methodical guide or elementary work adapted to the commencement of a course of study. He treats most subjects in a manner too general and cursory to give the student an adequate knowledge of them. After having pursued his beautiful arrangement, he is obliged to seek elsewhere for farther details. After having learnt the advantage of system, he is almost at the threshold of the science, turned back without a guide, to grope among the mazy volumes of our crowded libraries. This cannot be right. If system is of advantage at all, it is of advantage throughout. Were it practicable, it would be better for the student to have a single work, which embracing the whole subject, should properly arrange every principle and every case essential to be known preparatory to his stepping on the _arena_. Much, very much indeed, would still be left to be explored in the course of his professional career, independent of the _apices juris_, which the most vigorous and persevering alone can hope to attain."--Tucker's Commentary, Introduction, p. 4.

The justice of these remarks none can deny. It might be thought unbecoming in me to say how much the writer from whom I quote them has done to supply such a work as he describes. Yet I cannot suffer any feeling of delicacy to restrain me from the duty of recommending that work to your attentive perusal. I shall eagerly, too, avail myself of his permission to make frequent use of it, as I know of no book which so well supplies the necessary details to parts of the subject of which Mr. Blackstone has given only loose and unprofitable sketches. It is to be lamented that in doing this he has so strictly bound himself to the arrangement of that writer. That arrangement, as I have remarked, imposed on Mr. Blackstone the necessity of being occasionally loose and superficial. For want of one more strictly logical, the Virginia Commentator often finds it impossible to go into the necessary detail, without anticipating matters which properly belong to subsequent parts of his treatise; and too often, where this is impracticable, topics and terms are introduced, the explanation of which is, perhaps, deferred to the next volume.

An instance will illustrate my meaning:--Mr. Blackstone classes remedies for private wrongs, thus: "first, that which is obtained by the _mere act_ of the parties themselves; secondly, that which is effected by the _mere act_ and operation of _law_; and thirdly, that which arises from _suit_ or _action_ in courts." Now, it probably occurred to him, that he could not go into details on the two first of these three heads, without presenting ideas which would be unintelligible to any who had not already studied the third. In striving to avoid this, he has touched so lightly upon the other two, that his remarks on the important subjects of distress and accords, which come under the first head, leave the student nearly as ignorant as they found him. For this there was no real necessity, as a knowledge of the two first heads is by no means necessary, or indeed at all conducive to the right understanding of the third. Had the pride of philosophical analysis, and symmetry of arrangement, been sacrificed to the laws of logic and reason, there was nothing to forbid the introduction of treatises on these important topics, as copious and elaborate as those supplied by the diligence and research of the Virginia Commentator. The manner in which this has been done, has made it manifest how unfavorable the arrangement of Mr. Blackstone sometimes is to amplification and minuteness. The essays of the President of the Court of Appeals on distresses and accords, leave nothing to be desired. Yet no one can read them profitably without having first studied the law of remedies by suit or action.

These, and some other instances of the same sort, have led me to this determination. Wishing to avail myself of the labors of the Virginia Commentator, without losing the benefit of Mr. Blackstone's analysis, I propose to preserve the latter, but to make occasional changes in his arrangement, substituting one more logical, though perhaps less philosophical. This, and the postponement of the study of political law, are the only liberties I propose to take. The fourth division, which relates to crimes and punishments, will be the last considered. This will be done not only in a spirit of conformity to Mr. Blackstone's plan, but also because one of the most important branches of criminal law has reference to an offence of which no just idea can be formed without a previous and diligent study of the Constitution and of the science of government.

This last mentioned subject, young gentlemen, I should perhaps pass over but lightly, were I free to do so, contenting myself with a passing allusion to its connexion with the study of the law, and the encouragement you should derive from the honorable rewards that await distinguished merit in our profession. But this is not a mere school of professional education, and it is made my duty, by the statutes of the College, to lecture especially on the constitution of this state and of the United States. In the discharge of this duty it may be necessary to present views more important to the statesman, than to the mere practitioner. When I think of the difficulty and high responsibility attending this part of my task, I would gladly escape from it; but considerations of its importance and of the benefit to the best interests of our country which has heretofore resulted from its faithful execution, come in aid of a sense of duty, and determine me to meet it firmly and perform it zealously.

The mind of the student of law is the ground in which correct constitutional opinions and sound maxims of political law should be implanted. The study of the common law involves the study of all the rights which belong to man in a state of society. The history of the common law is a history of the occasional invasions of these rights, of the struggles in which such invasions have been repelled, and of the securities provided to guard against their recurrence. A mind thoroughly acquainted with the nature and importance of the writ of _habeas corpus_, and the trial by jury, and rightly understanding the indestructible character of the right of private property, will hardly fail to be awake to any attack which may be aimed at liberty from any quarter. Hence liberty finds in the students of the law a sort of body guard. Their professional apprenticeship serves as a civil polytechnic school, where they are taught the use of weapons to be wielded in her defence. The history of our country from the first dawning of the revolution is full of proofs and examples of this. The clear view of the rights of the colonies which led to the Declaration of Independence, was one which hardly any but lawyers could have taken, and of the accuracy of which none but lawyers could have been sure. It was from them the ball of the revolution received its first impulse, and under their guidance it was conducted to the goal. Some few others were placed forward by circumstances; but they soon fell back, or found their proper place of service in the field; leaving the great cause to be managed by those whose studies qualified them to know where to insist, and where to concede; when to ward, and when to strike. The state papers emanating from the first congress will, accordingly, be found worthy to be compared with the ablest productions of the kind recorded in history; displaying an ability, temper, and address, which prepares the reader to be told that a large majority of the members of that body were lawyers.

In Mr. Blackstone's introductory lecture are some remarks on the importance of the study of the law to English gentlemen, strictly applicable to this view of the subject. "It is," says he, "perfectly amazing, that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as necessary, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professor of the laws: but every man of superior fortune thinks himself _born_ a legislator. Yet Tully was of a different opinion: 'it is necessary,' says he, 'for a senator to be thoroughly acquainted with the constitution; and this,' he declares, 'is a knowledge of the most extensive nature; a matter of science, of diligence, of reflection; without which no senator can possibly be fit for his office.'"

If the part in the government allotted to the people of England renders this admonition important to them, how much more important must it be to us, who are in theory and in fact _our own rulers_. Not only is every office accessible to each one of us; but each, even in private life, as soon as he puts on manhood, assumes a "place in the commonwealth." In practice, as in theory, the SOVEREIGNTY OF THE STATE is in us. _Born to the purple_, the duties of that high destiny attach upon us at our birth; and unless we qualify ourselves to discharge them, we must cease to reproach the ignorance and folly, the passion and presumption, which so often disgrace the sovereigns of the old world, and heap wretchedness and ruin on their subjects. The same causes will have the like effects here as there. Power does not imply wisdom or justice, whether in the hands of the few or the many: and it is only by the diligent study of our duties in this important station that we can qualify ourselves so to administer its functions, as to save the free institutions inherited from our fathers, from the same reproach which the testimony of history fixes upon all other governments.

Not only is this true in reference to us as well as to the kings of the earth, but it is more emphatically true of us than of them. Whatever be their theory of sovereignty, and however they may prate about _divine right_, they all know, and feel, that, after all, they are but _kings by sufferance_. They may talk of absolute sovereignty, and claim for government that sort of _omnipotence_ which is said to reside in the British parliament. But, after all, they know and feel, that there is much they cannot do, because there is much they dare not do. The course of events now passing in England is full of proof of this. We have just seen that same omnipotent parliament, new-modelling itself to suit the wishes of the people. This act indeed, was itself an exertion of this pretended omnipotence, but wisely and discreetly exercised, in surrendering power. It was certainly done with a very bad grace; and at this moment we see that body anxiously watching the temper of the multitude, and adapting its measures, not to the views of its members, not even to the views of the constituent body, but to the real or supposed interests of the great unrepresented mass. Such is the check, which in spite of all positive institutions, the physical force of numbers, however degraded, and, professedly, disregarded, must exercise over their rulers; and in this check, they find a motive to justice, forbearance, and circumspection, which, in a measure, restrains the abuse of power.

But may not we, the sovereign citizens of these states, abuse power too? When men are numerous and "strong enough to set their duties at defiance, do they cease to be duties any longer?" Does that which would be unjust as the act of ninety-nine, become just, as being the act of an hundred? Is it in the power of numbers to alter the nature of things, and to justify oppression, though it should fall on the head of only one victim? It would be easy to point to instances in which we all believe that majorities have done great wrong; and that under such wrongs we have suffered and are still suffering we all know. But where is the check on such abuse of power? Constitutional authority and physical force are both on the same side, and if the _wisdom_ and _justice_ of those who wield both does not freely afford redress, there arc no means of enforcing it. "There is no sanction to any contract against the will of prevalent power."

The justice of these ideas is recognized in the forms of all our governments. The limitations on the powers of congress and the state legislatures, are all predicated on the certain truth "that majorities may find or imagine an interest in doing wrong." Hence there are many things which cannot be lawfully done by a bare majority; and many more, which no majority, however great, is authorised to do. Two-thirds of the senate must concur in a sentence of impeachment. The life and property of an individual cannot be taken away but by the unanimous voice of his triers; and all the branches of all our governments collectively cannot lawfully enact a bill of attainder, or an _ex post facto_ statute.

But though such acts are forbidden by the constitution, they may nevertheless be passed, and judges may be found to enforce them, if those holding legislative and judicial offices shall be so minded. The constituents, too, of a majority of the legislature may approve and demand such acts. Where then is the security that such things will not be done? Where can it be but in the enlightened sense of justice and right in the constituent body?

I am not sure that such restraints on the powers of public functionaries are not even more necessary in a republican government than in any other. A king can scarcely have a personal interest in ruining one portion of his dominions for the benefit of the rest, and he would not dare to ruin the whole, while a spark of intelligence and spirit remained among the people. But in a republic, whenever the inclination and the power to do such a wrong concur, the very nature of the case secures the rulers from all fear of personal consequences. The majority is with them. Their own constituents are with them. To these is their first duty; and shall they hesitate to do that which is to benefit their constituents, out of tenderness to those who are not their constituents? We know how such questions are answered, when the occasion is one where a _fixed majority_ have a _fixed interest_ in the proposed wrong. Is not this the reason why legislative encroachment so much disposes men to acquiesce in executive usurpation? Is it not this, which, when the barriers of constitutional restraint are seen to fall, drives minorities, _as by a sort of fatal instinct_, to seek shelter under the arm of a _common master_, from the all pervading tyranny of majorities exercising the power of _universal legislation_? The wrongs of America were the act of the parliament of England, goaded on by the people. It was they who claimed a right to legislate in all things for the colonies. It was they who demanded a revenue from America; and the colonies, eagerly looking to the crown for protection, maintained an unshaken loyalty, until the king was seen to take part with their oppressors. The wrongs of Ireland are the act of the people of England. Ireland is the rival of England in agriculture, manufactures and commerce; and every concession to the former, seems to the multitude to be something taken from the prosperity of the latter. But the representation of Ireland in parliament is to that of England as one to five; and when the Irish people cry to parliament for redress, they are answered _as all appeals from minorities are answered by the representatives of majorities_. But how would they be answered if the representative and constituent bodies were both thoroughly instructed in the sacred character and paramount authority and importance of the _duties_ which belong to the high function of sovereignty? We justly deny and deride the divine right of kings; and we assert and maintain _the divine right of the people to self government_. And it is a divine right. It is a corollary from the right and duty to fulfil the purposes of our being, which accompany each one of us into the world. The right and the duty both come from the author of that being. He imposes the one when he gives the other, and thus fixes on us a responsibility which clings to us through life. We deceive ourselves if we think to get rid of any portion of this responsibility by entering into partnership with others, each one of whom brings into the concern the same rights, the same duties, and the same responsibilities;--neither more nor less than ourselves. We do but multiply, and divide again by the same number. Each receives, by way of dividend, the same amount of right, duty, and responsibility that he carried into the common stock. Of so high a nature are these, and so vast are the interests with which they are connected, that it has been truly said, that, whether we mount the hustings or go to the polls, we may well tremble to give or to receive the power which is there conferred.

Gentlemen; if these ideas be just, how important is the duty imposed on me by that statute of the college which requires me to lecture on constitutional law! How desirable is it that there should be every where schools, in which the youth of our country should be thoroughly imbued with correct opinions and just sentiments on this subject! It was Agesilaus, I think, who said that "the business of education was to prepare the boy for the duties of the man." How pre-eminently important, then, must be that branch of education which is to qualify him to perform this highest of all social duties, and to bear worthily his part in that relation which has been characterized as "a partnership in all science, in all art, in every virtue, and in all perfection; a partnership, not only between those who are living, but between those who are living, those who are dead, and those who are yet to be born."

These striking words, which are from the pen of the celebrated Edmund Burke, call to mind the high testimony which he has borne in favor of the study of the law, as a school of political rights. After having acted an important part in procuring the repeal of the stamp act, he made his last effort in favor of the rights of the colonies, in March, 1775. On that occasion, laboring to dissuade the British parliament from pushing America to extremities, he descanted on the love of freedom, which he pronounced to be the predominating feature in the character of our fathers. The prevalence of this passion he ascribed to a variety of causes, none more powerful than the number of lawyers, and the familiarity of the people with the principles of the common law. His ideas I will give you in his own words, for it is only in his own words that his ideas ever can be fittingly expressed.

He says, "In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science.... This study renders men _acute_, _inquisitive_, _dexterous_, _prompt in attack_, _ready in defence_, _full of resources_. In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; _here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance, and snuff the approach of tyranny in every tainted breeze._"

Such, young gentlemen, is the important and useful influence which the study of our profession enables its members to exert. But if, instead of preparing their minds by this study, the very men to whom the people look up for light, do but provide themselves with a few set phrases contrived to flatter and cajole them, what but evil can come of it?

"The people can do no wrong." Why! this if but what all sovereigns hear from their flatterers. In one sense, it is indeed true of both, for there is no human tribunal before which either king or people can be arraigned. But neither can make right and wrong change places and natures.

"_Vox populi, vox Dei._" "It is the voice of God." So said the Jews of the impious Herod. But the judgments of the insulted Deity showed how mere a worm he was; and _his_ judgments are not limited to kings, nor withheld by numbers. We may preserve all the outward forms of freedom, the checks and balances of the constitution may remain to all appearance undisturbed, and yet he who can "curse our blessings" may give us over to all the evils of despotism, if we do not "lay to heart" the high duties of that freedom wherewith he has made us free.

I am sensible, young gentlemen, that, to many, these ideas will not be acceptable. And for an obvious reason. "Men like well enough," it is said, "to hear of their power, but have an extreme disrelish to be told of their duties." Yet in a government of equal rights, these are strictly correlative. The rights of each individual are the exact measure of the duties which others owe to him, and of coarse, of those he owes to others. This is so obviously true, that it needs but be stated, to be recognized at once as a man recognizes his face in the glass. But _he_ "goeth his way, and straightway forgetteth what manner of man he was." Let not us do likewise.

But there is another reason why many will hear with impatience of the difficulties attendant on the proper discharge of duties, which are too often made the low sport of a holiday revel. None can deny the truth and justice of the remarks already quoted from Mr. Blackstone; but few, I fear, are willing to bring them home, and to acknowledge the necessity of such severe preparation to qualify themselves to exercise the franchises of a citizen. Let me hope, young gentlemen, that you will view the matter in a different light, and go to your task with the more cheerfulness, from the assurance that you will thus be qualified to derive a blessing to yourselves and to your country, from the discreet and conscientious exercise of a privilege, which others, from a want of correct information and just sentiments, so often pervert to the injury of both.