Law in its true sense is not the work of mere will—not an act of intellectual caprice. It is a severe and necessary deduction from the relations of things. The Divine legislator sees and knows these relations perfectly. He can draw no wrong deduction from them. He can make no mistake. Whatever laws have certainly emanated from Him are certainly right. This is the sense in which it is true that "there is one Lawgiver:" all others but attempt the work; He alone is competent to perform it. There is no mathematical certainty in our reasoning on moral as there is on physical relations. We know that the three angles of a triangle are equal to two right angles with an assurance we can never have in regard to any moral truth whatever. The Divine law is a deduction necessarily and mathematically certain as much so as any truth in geometry. Human law can aim only at such a probable deduction as results from a finite and imperfect knowledge.
The system of law delivered by Moses to the Jews deserves, therefore, the most careful study at the hands of all who believe him to have been a divinely commissioned lawgiver. These laws were not intended for any other people than the Israelites; they were adapted to their circumstances, climate, country, neighbors, to the period of the world when they were promulgated, and during which they were to prevail. They were certainly not meant as a model for any other form of government, for any other people, or for any other time. Many laws are to be found there which are unnecessary and superfluous if applied elsewhere. Many actions, innocent in themselves, are prohibited. All the mala prohibita are not mala in se. But one thing is as clear as a sunbeam, and that is a very important light to the student of Ethics; if God was the author of these laws, nothing morally wrong was commanded or allowed by them. When it was said of the Jews through the prophet, "I gave them statutes which were not good," it cannot mean not morally good; laws which it would be sinful in them to obey. The word in the original is not the word appropriated in that language to right, conformity to rule, but to goodness in its most general sense. Good statutes mean wise and expedient statutes. By no process can the logical mind be brought to the conclusion that the perfectly wise and good lawgiver, in framing a code of laws for any people, would impose as a punishment "for the hardness of their hearts," a penalty, submission to which would itself be punishable as a sin against the law of nature. He might command or allow as such punishment what in itself was inexpedient and injurious to them, and which upon the promulgation of a new law repealing the old and prohibiting what it allowed, would become by the sanction of the same lawgiver thenceforth universally malum prohibitum. The authority of God as a lawgiver is certainly not confined to a mere declaration of what is right or wrong by the law of Nature.
There can be no merely arbitrary laws. It is necessary to bear in mind that we are now considering the province of the legislator, who ought to enact no law without an end. "Civil legislative power," says Rutherforth (B. II, c. vi, s. 10), "is not in the strict sense of the word an absolute power of restraining or altering the rights of the subjects: it is limited in its own nature to its proper objects, to those rights only in which the common good of the society or of its several parts requires some restraint or alteration. So that whenever we call the civil legislative power, either of society in general or of a particular legislative body within any society, an absolute legislative power, we can only mean that it has no external check upon it in fact; for all civil legislative power is in its own nature under an internal check of right: it is a power of restraining or altering the rights of the subjects for the purpose of advancing or securing the general good, and not of restraining or altering them for any purpose whatever, and much less for no purpose at all." There are, therefore, no arbitrary laws which fulfil the end of law. Doubtless the true objects of society and government may be mistaken by him who sets up to be law-maker, or if those objects are properly appreciated, the means for advancing them may be mistaken. It is not wonderful that in a matter which demands the highest wisdom, many should try and fail.
It becomes important to inquire what are the true ends of society and government? Man is a gregarious animal—a social being. He may exist in solitude, but he cannot enjoy life: he cannot perfect his nature. Those who have watched and studied closely the habits of those irrational animals, who live in communities, as the ant, the bee, and the beaver, have observed not only a settled system and subordination, but the existence of some wonderful faculty, like articulate speech, by which communication takes place from one to another; a power essential to order. Man, the highest social animal in the scale of earthly being, has also the noblest faculty of communication.
The final cause—the reason why man was made a social being—is that society was necessary to the perfection of his physical, intellectual, and moral powers, in order to give the fullest return to the labor of his hands and to secure the greatest advances in knowledge and wisdom. It is for no vain national power or glory, for no experimental abstraction, that governments are instituted among men. It is for man as an individual. It is to promote his development; and in that consists his true happiness. The proposition would be still more accurate were it said, society is constituted that men may be free—free to develop themselves—free to seek their own happiness, following their own instincts or conclusions. Without society—and government, which of course results from it—men would not be free. An individual in a state of isolation might defend himself from savage beasts, and more savage men, as long as his strength lasted, but when sickness or age came on, the product of the labor of his hands, accumulated by a wise foresight to meet such a contingency, would become the prey of the stronger. The comparatively weak-minded and ignorant would be constantly subject to the frauds of the more cunning.
It is enough to look at the effects of the division of employments and the invention of labor-saving machinery, to recognize the invaluable results of society in the development of wealth and power. In a state of isolation a man's entire time and strength would be needed for the supply of his physical wants. As men advance in knowledge and wisdom the standard of their mere physical wants is elevated. They demand more spacious and comfortable dwellings, more delicate viands and finer clothing.
"Allow not nature more than nature needs,
Man's life is cheap as beasts'."
It is not true that men would be morally better or happier, if their style of living were reduced to the greatest plainness consistent with bare comfort. Our taste in this respect, as for the fine arts, as it becomes more refined, becomes more susceptible of high enjoyment. When large fortunes are suddenly made by gambling, or what is equivalent thereto, then it is that baleful luxury is introduced—a style of living beyond the means of those who adopt it, and spreading through all classes. Taste, cultivated and enjoyed at the expense of morals, degrades and debases instead of purifying and elevating character. Men, who have accumulated wealth slowly by labor of mind or body, do not spend it extravagantly. If they use it liberally, that creates no envy in their poorer neighbor, no ruinous effort to equal what is recognized to be the due reward of industry and economy. The luxury, which corrupted and destroyed the republic of Rome, was the result of large fortunes suddenly acquired by the plunder of provinces, the conquests of unjust wars. The most fruitful source of it, in our own day, is what has been well termed class legislation—laws which either directly or indirectly are meant to favor particular classes of the community. They are supported by popular reasons and specious arguments, yet there is one test of the true character of such laws, an experimentum crucis, of which, in general, they cannot bear the application. Legislation, which requires or which will pay to be bored or bought, is unequal legislation; and therefore unwise and unjust. Bentham's rule, though false as the standard of right and wrong, is in general the true rule of practical legislation, the greatest good of the greatest number. It is expressed with the most force and accuracy by that master of the science, Bynkershoek; Utilitas, utilitas, justi prope mater et æqui: in which observe that the word prope is emphatic. Legislation for classes violates this plain rule of equal justice, and moreover does not, in the long run, benefit those for whom it is intended. The indirect evils upon society at large are even more injurious than those which are direct. Men are often thus poor to-day and rich to-morrow. The bubble, while it dances in the sunbeam, glitters with golden hues, though destined almost immediately to burst and be seen no more.
What government owes to society, and all it owes, is the impartial administration of equal and just laws. This produces security of life, of liberty, and of property. It has become a favorite maxim, that it is the duty of government to promote the happiness of the people. The phrase may be interpreted so as to mean well, but it is a very inaccurate and unhappy one. It is the inalienable right of men to pursue their own happiness; each man under such restraints of law as will leave every other man equally free to do the same. The true and only true object of government is to secure this right. The happiness of the people is the happiness of the individuals who compose the mass. Speaking now with reference to those objects only, which human laws can reach and influence, he is the happy man, who sees his condition in life constantly and gradually, though it may be slowly, improving. Let government keep its hands off—do nothing in the way of creating the subject-matter of speculation—and things naturally fall into this channel. There will be some speculators, as there will be some gamblers; but they will be few. The stock market is filled with fancies, which the government has manufactured and continues to manufacture to order. It is the duty of government to encourage the accumulation of the savings of industry. The best way to do so is to guard the strong box from the invasion of others, and not itself to invade it. Property has an especial claim to protection against the government itself. The power of taxation in the legislature is in fact a part of the eminent domain; a power that must necessarily be reposed in the discretion of every government to furnish the means of its own existence. One grievous invasion of property—and of course ultimately of labor, from whose accumulations all property grows—is by government itself, in the shape of taxation for objects not necessary for the common defence and general welfare. Men have a right not only to be well governed, but to be cheaply governed—as cheaply as is consistent with the due maintenance of that security, for which society was formed and government instituted. This, the sole legitimate end and object of law, is never to be lost sight of—security to men in the free enjoyment and development of their capacities for happiness—security—nothing less—but nothing more. To compel men to contribute of the earnings or accumulations of industry, their own or inherited, to objects beyond this, not within the legitimate sphere of legislation, to appropriate the money in the public treasury to such objects, is a perversion and abuse of the powers of government, little if anything short of legalized robbery. What is the true province of legislation, ought to be better understood. It is worth while to remark, that in every new and amended State constitution, the bill of rights spreads over a larger space; new as well as more stringent restrictions are placed upon legislation. There is no danger of this being carried too far; as Chancellor Kent appears to have apprehended that it might be. There is not much danger of erring upon the side of too little law. The world is notoriously too much governed. Legislators almost invariably aim at accomplishing too much. Representative democracies, so far from being exempt from this vice, are from their nature peculiarly liable to it. Annual legislatures—with generally two-thirds new members every year—increase the evil. The members fall into the common mistake, that their commission is to act, not to decide in the first place whether action is necessary. They would be blamed and ridiculed, if they adjourned without doing something important. Hence the annual volumes of our Acts of Assembly are fearfully growing in bulk. It is not merely of the extent of local legislation, the vast multiplication of charters for every imaginable purpose, or of the constantly recurring tampering with the most general subjects of interest, finance, revenue, banking, education, pauperism, &c., that there is reason to complain; but scarce a session of one of our legislatures passes without rash and ill-considered alterations in the civil code, vitally affecting private rights and relations. Such laws are frequently urged by men, having causes pending, who dare not boldly ask that a law should be made for their particular case, but who do not hesitate to impose upon the legislature by plausible arguments the adoption of some general rule, which by a retrospective construction, will have the same operation. It is a most monstrous practice, which lawyers are bound by the true spirit of their oath of office, and by a comprehensive view of their duty to the Constitution and laws, which they bear so large a part as well in making as administering, to discountenance and prevent. It is to be feared, that sometimes it is the counsel of the party who recommends and carefully frames the bill, which, when enacted into a law, is legislatively to decide the cause. It is time that a resort to such a measure should be regarded in public estimation as a flagrant case of professional infidelity and misconduct.
This brief sketch of the true province of legislation is enough to evince its vast importance. How great is the influence of the lawyers as a class upon legislation! Let any man look upon all that has been done in this department, and trace it to its sources. He will acknowledge that legislation, good or bad, springs from the Bar. There is in this country no class of lawyers confined to the mere business of the profession—no mere attorneys—no mere special pleaders—no mere solicitors in Chancery—no mere conveyancers. However more accurate and profound may be the learning of men, whose studies are thus limited to one particular branch, it is not to be regretted either on account of its influence on the science or the profession. The American lawyer, considering the compass of his varied duties, and the probable call which will be made on him especially to enter the halls of legislation, must be a Jurist. From the ranks of the Bar, more frequently than from any other profession, are men called to fill the highest public stations in the service of the country, at home and abroad. The American lawyer must thus extend his researches into all parts of the science, which has for its object human government and law: he must study it in its grand outlines as well as in the filling up of details. He is as frequently called upon to inquire what the law ought to be as what it is. While a broad and marked line separates, and always ought to separate the departments of Legislation and Jurisprudence, it is a benefit to both that the same class of men should be engaged in both. Practice will thus be liberalized by theory, and theory restrained and corrected by practice. The mere abstractionist or doctrinaire would aim at the formation of a code of great simplicity: the practitioner sees in it the parent of uncertainty and injustice. Legal propositions cannot be framed with the certainty of mathematical theories. The most carefully studied language still leaves room for interpretation and construction. Time itself, which works such mighty changes in all things, produces a state of circumstances not in the mind of the lawgiver. The existing system, it may be, is an unwieldy, inconvenient structure, heavy and grotesque from the mixed character of its architecture outwardly, inwardly its space too much occupied and its inmates embarrassed by passages and circuities. The abstractionist would at once demolish it, and replace it by a light, commodious and airy dwelling, more symmetrical and chaste in its appearance, better fitted for the comfort and usefulness of its inhabitants. The practitioner, who has become familiar with it, who observes and admires that silent legislation of the people, which shows itself not on the pages of the statute book, and receives its recognition in courts of justice only after it has ceased to need even that to give it form and vitality, and who understands, therefore, how, with little inconvenience, it is made to accommodate itself to every change of condition, sits down to a careful calculation of the cost and risk of such wholesale change. History and practical experience, alike, suggest to him, that the structure is a castle as well as a dwelling, a place for security as well as comfort; that its foundations have been laid deeply on the solid rock—its masonry more firmly knit together by the time it has endured. Yet he will not deny that what can be done consistently with security ought to be done. It is worse than in vain to oppose all amendment. It will break down every artificial barrier that may be reared against it, if it be not quietly and wisely directed in those channels which it seeks at the least expense to security and stability. Surely it is not conceding too much to this spirit to admit, that laws should be composed in accurate but perspicuous language, without redundancy of words or involution of sentences; that the policy of public measures should not be wrapt up in the folds of State mystery; and that all legislation should be based upon the principle of leaving the greatest liberty of private judgment and action, consistent with public peace and private security. A blind attachment to principles of jurisprudence or rules of law because they are ancient, when the advancement of the useful arts, the new combinations of trade and business, and the influence of more rapid and general intercourse demand their repeal or modification, is as much to be deprecated as rash innovation and unceasing experiment. Indeed it scarcely ever fails to defeat its own end, and though it may retard for a while, renders the course of reform more destructive than it otherwise would have been. True conservatism is gradualism—the movement onward by slow, cautious, and firm steps—but still movement, and that onward. The world, neither physically, intellectually, nor morally, was made to stand still. As in her daily revolutions on her own axis as well as her annual orbit round the sun, she never returns precisely to the same point in space which she has ever before occupied, it would seem to be the lesson which the Great Author of all Being would most deeply impress upon mind as he has written it upon matter; "by ceaseless motion all that is subsists."