The Southern Literary Messenger, Vol. I., No. 4, December, 1834

by Various

There is another particular in which Mr. Blackstone's order of instruction has been advantageously changed at this place. His is certainly the true philosophical arrangement of the subject. When we are told that "municipal law is a rule of civil conduct prescribed by the supreme power in the state," it is obvious to ask, "what is that supreme power, and whence comes its supremacy?" When we are told that it is "the system of rules of civil conduct, which the state has ordained for itself," the first inquiry is, "what is the state?" Thus whatever definition of municipal law we adopt, the subject of inquiry that meets us at the threshold is the Lex Legum; the law which endues the municipal law itself with authority.

If the individual to be instructed were one who had heretofore lived apart from law and government, yet capable (if such a thing were possible) of understanding the subject, it is here we ought to commence. To him it would be indispensable to explain, in the first instance, the structure of the body politic; to specify the rights surrendered by individuals; and to set before him the equivalent privileges received in exchange. We too might be supposed to require a like exposition before we would be prepared to submit to the severe restraints and harsh penalties of criminal law. But in regard to controversies between individuals we feel no such jealousies. In these, the law, acting but as an arbiter, indifferent between the parties, no question concerning its authority occurs to the mind. The readiness with which we acquiesce in its decisions, is strikingly manifested in the fact, that the whole of England, Ireland and the United States are, for the most part, governed by a law which has no voucher for its authority but this acquiescence. The same thing may be said of the authority of the civil law on the continent of Europe. It thus appears that the mind does not always require to be informed of the origin of the law which regulates and enforces, or protects individual rights, before it will condescend to inquire what are its behests. Prima facie it should be so; but being, in point of fact, born in the midst of law, habituated to it from our infancy, and accustomed to witness uniform obedience to its authority on the part of those whom we were taught to obey, we learn to regard it as a thing in rerum natura, rather than of human invention; a sort of moral atmosphere, which, like that we breathe, seems a very condition of our existence.

There is therefore no inconvenience to be apprehended from taking up the subject in an inverted order, treating first of individual rights, and reserving those that grow out of the relation of the citizen to the body politic, and the correlative duties of that relation, for future inquiry.

While there is nothing to be objected to this arrangement, there is much in favor of it. It is important that they who engage in the study of political law, should come to the task with minds prepared for it; well stored with analogous information, and sobered and subdued by the discipline of severe investigation. There is a simplicity in some views of government which is apt to betray the student into a premature belief that he understands it thoroughly; and then, measuring the value of his imagined acquirements, not by the labor that they have cost him, but by the dignity and importance of the subject, he becomes inflated, self-satisfied and unteachable; resting in undoubting assurance on the accuracy and sufficiency of such bare outline as his instructer may have thought proper to place before him. But in those countries where the authority of government rests on a questionable title, they who are entrusted with the education of youth, may naturally wish to keep them from looking into it too narrowly. Hence it may be a measure of policy with them, to introduce the student, in the first place, to the study of political law, in the hope of making on his raw and unpractised mind, such an impression, as may secure his approbation of the existing order of things. The faculty of investigating legal questions, and forming legal opinions, may almost be regarded as an acquired faculty; so that, in the earlier part of his researches, the student necessarily acquiesces in the doctrines which are pronounced ex cathedra by his teacher. At this time he readily receives opinions on trust; and if it be his interest to cherish them, or if he is never called on in after life to reexamine them, he is apt to carry them with him to the grave. This is perhaps as it should be in England and other countries of Europe. Having no part in the government, it may be well enough that he should learn to sit down contented with this sort of enlightened ignorance.

But with us the case is different. The authority of our governments is derived by a title that fears no investigation. We feel sure, that, the better it is understood, the more it will be approved. It rests too on a charter conferring regulated and limited powers; and the well being of the country requires that the limitations and regulations be strictly observed. Now every man among us has his "place in the commonwealth." It is on the one hand, the duty of every man to aid in giving full effect to all legitimate acts of government; and on the other, to bear his part in restraining the exercise of all powers forbidden or not granted. Every man therefore owes it to his country to acquire a certain proficiency in constitutional law, so as to act understandingly, when called on to decide between an alleged violation of the constitution, and an imputed opposition to lawful authority. Such occasions are of daily occurrence. Scarcely a day has passed, since the adoption of the federal constitution, when some question of this sort has not been before the public. Such is the effect of that impatience of restraint natural to man. So prompt are the people to become restive under laws of questionable authority, and so apt are rulers to strain at the curb of constitutional limitations, that one or the other, or both of these spectacles, is almost always before us.

When you come then, young gentlemen, to the study of political and constitutional law, you will find it no small advantage to have been engaged for some months before in studies of a similar character. The opinions you will then form will be properly your own. I may not be so successful as I might wish, in impressing you with those I entertain; but I shall be more gratified to find you prepared to "give a reason for the faith that is in you," whatever that faith may be, than to hear you rehearse, by rote, any political catechism that I could devise. I shall accordingly postpone any remarks on constitutional and political law, until your minds have been exercised and hardened by the severe training they will undergo in the study of the private rights of individuals, of wrongs done in prejudice of such rights, and of the remedies for such wrongs. All these topics are embraced in the second and third division of municipal law, that I have laid before you.

To these belong the most intricate and difficult questions in the science of law. In introducing you to the study of these, let me say, in the language of one from whom I am proud to quote, that, "I cannot flatter you with the assurance that 'your yoke is easy and your burden light.' I will not tell you that your path leads over gentle ascents and through flowery meads, where every new object entices us forward, and stimulates to perseverance. By no means! The task you have undertaken is one of the most arduous; the profession you have chosen one of the most laborious; the study you are about to pursue, one of the most difficult that can be conceived. But you have made your election. You have severed yourselves from the common herd of youth, who shrink from every thing that demands exertion and perseverance. You have chosen between the allurements of pleasure and the honors which await the disciples of wisdom. You yield to others to keep the noiseless tenor of their way in inglorious ease. You have elected for yourselves the path that philosophers and moralists represent as leading, up a rugged ascent, to the temple of fame. It may be the lot of some of you to elevate yourselves by talents and unabating zeal, in the pursuit you have selected. But these distinguished honors are not to be borne away by the slothful and inert. Nulla palma sine pulvere. He who would win the laurel, must encounter the sweat and toil of the arena. Nor will it suffice that he occasionally presses on to the goal. If he slackens in his efforts he must lose ground. We roll a Sisyphean stone to an exalted eminence. He who gives back loses what his strength had gained; and sinking under the toil his own indolence increases, will at length give up his unsteady efforts in despair."—1. T. C. Introduction, p. vi.

I can add nothing to these striking remarks but my testimony to their truth. There is, perhaps, no study that tasks the powers of the mind more severely than that of law. In it, as in the study of mathematics, nothing is learned at all that is not learned perfectly; and a careless perusal of Euclid's elements would not be more unprofitable, than that of a treatise on the laws of property. Nor will a mere effort of memory be of more avail in the one case than in the other. Both must be remembered by being understood; by being through the exercise of intense thought, incorporated as it were into the very texture of the mind. To this end its powers must be fully and faithfully exerted. As, in lifting at a weight, you do but throw away your labor, until you man yourself to the exertion of the full measure of strength necessary to raise it; so, in this study, you may assure yourselves that all you have done is of no avail, if you pass from any topic without thoroughly understanding it. And let no man persuade you that genius can supply the place of this exertion. Genius does not so manifest itself. The secret of its wonderful achievements is in the energy which it inspires. It is because its prompting sting, like the sharp goad of necessity, urges to herculean effort, that it is seen to accomplish herculean tasks. He is deceived who fancies himself a favored child of genius, unless he finds his highest enjoyment in intellectual exercise. He should go to the toil of thought like the champion to the lists, seeking in the very certaminis gaudia the rich reward of all his labors.

There may be something startling, I fear, in this exhibition of the difficulties that lie before you, and it is proper to encourage you by the assurance that by strenuous effort they may be certainly overcome. Remember too that this effort will be painful only in the outset. The mind, like the body, soon inures itself to toil, and wears off the soreness consequent on its first labors. When this is done, the task becomes interesting in proportion to its difficulty, and subjects which are understood without effort, and which do not excite the mind to thought, seem flat and insipid.

But lest the student should falter and give back in his earlier struggles, it is the duty of the teacher to afford him such aids as he can. This is mainly to be done by means of such an analysis and arrangement of the subject as may prevent confusion, and consequent perplexity and discouragement.