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

by Various

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.

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.