The Southern Literary Messenger, Volume I., 1834-35

by Various

1. That which regulates the nature and form of the body politic; which establishes the relation that each individual bears to it, and the rights and duties growing out of that relation, which determines the principles on which it exercises authority over him; and settles a system of jurisprudence by which it operates to protect and enforce right, and to redress and punish wrong.

2. That which determines the relations of individual members of society to each other; which defines the rights growing out of that relation; and regulates the right of property, and such personal rights as must subsist even in a state of nature.

3. That which defines the wrongs that may be done by one individual member of society to another, in prejudice of his rights, whether of person or property, and provides means for preventing or redressing such wrongs.

4. That which defines and denounces the wrongs which may be done by any individual member of society, in violation of the duties growing out of his relation to the body politic, and provides means for preventing and punishing such violation.

The first of these divisions is treated by Mr. Blackstone in his first book, under the comprehensive head of "The Rights of Persons." Under the same head he includes so much of the second division as relates to such personal rights as must have belonged to man in a state of nature, and such as grow out of his relation to other individual members of society. Such are the relative rights of husband and wife, parent and child, guardian and ward, and master and servant—and the absolute rights, of personal liberty, and of security to life, limb and reputation. These rights are obviously not the creatures of civil society, however they may be regulated and modified by municipal law. They in no wise depend on "the nature or form of the body politic;" nor on "the relations which individuals bear to it;" nor on "the rights and duties growing out of that relation;" nor on "the principles on which it exercises authority over individuals;" nor on "the system of jurisprudence."

As little indeed do they depend on "the rights of property," but they have much in common with them. Together with them, they collectively form the mass of "individual rights," as contradistinguished from "political rights." Neither class derives its existence from civil society, although both are alike liable to be regulated by it, and the two together form the subject of almost all controversies between man and man. Now with rights in actual and peaceable enjoyment, law has nothing to do. It is controversy which calls it into action; and as both this class of personal rights, and the rights of property, have the same common origin—both subsisting by titles paramount to the constitutions of civil society; as both are the ordinary subjects of controversy between individuals; and as these controversies are all conducted according to similar forms, decided by the same tribunals, and adjusted by the like means,—it is found convenient to arrange them together in a course of instruction. Such I believe has always been the practice in this institution. Proposing to conform to it, I have thought it best, in the outset, to intimate this slight difference between this practice and Mr. Blackstone's arrangement.

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.