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.