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

by Various

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.

But may not we, the sovereign citizens of these states, abuse power too? When men are numerous and "strong enough to set their duties at defiance, do they cease to be duties any longer?" Does that which would be unjust as the act of ninety-nine, become just, as being the act of an hundred? Is it in the power of numbers to alter the nature of things, and to justify oppression, though it should fall on the head of only one victim? It would be easy to point to instances in which we all believe that majorities have done great wrong; and that under such wrongs we have suffered and are still suffering we all know. But where is the check on such abuse of power? Constitutional authority and physical force are both on the same side, and if the wisdom and justice of those who wield both does not freely afford redress, there arc no means of enforcing it. "There is no sanction to any contract against the will of prevalent power."

The justice of these ideas is recognized in the forms of all our governments. The limitations on the powers of congress and the state legislatures, are all predicated on the certain truth "that majorities may find or imagine an interest in doing wrong." Hence there are many things which cannot be lawfully done by a bare majority; and many more, which no majority, however great, is authorised to do. Two-thirds of the senate must concur in a sentence of impeachment. The life and property of an individual cannot be taken away but by the unanimous voice of his triers; and all the branches of all our governments collectively cannot lawfully enact a bill of attainder, or an ex post facto statute.

But though such acts are forbidden by the constitution, they may nevertheless be passed, and judges may be found to enforce them, if those holding legislative and judicial offices shall be so minded. The constituents, too, of a majority of the legislature may approve and demand such acts. Where then is the security that such things will not be done? Where can it be but in the enlightened sense of justice and right in the constituent body?

I am not sure that such restraints on the powers of public functionaries are not even more necessary in a republican government than in any other. A king can scarcely have a personal interest in ruining one portion of his dominions for the benefit of the rest, and he would not dare to ruin the whole, while a spark of intelligence and spirit remained among the people. But in a republic, whenever the inclination and the power to do such a wrong concur, the very nature of the case secures the rulers from all fear of personal consequences. The majority is with them. Their own constituents are with them. To these is their first duty; and shall they hesitate to do that which is to benefit their constituents, out of tenderness to those who are not their constituents? We know how such questions are answered, when the occasion is one where a fixed majority have a fixed interest in the proposed wrong. Is not this the reason why legislative encroachment so much disposes men to acquiesce in executive usurpation? Is it not this, which, when the barriers of constitutional restraint are seen to fall, drives minorities, as by a sort of fatal instinct, to seek shelter under the arm of a common master, from the all pervading tyranny of majorities exercising the power of universal legislation? The wrongs of America were the act of the parliament of England, goaded on by the people. It was they who claimed a right to legislate in all things for the colonies. It was they who demanded a revenue from America; and the colonies, eagerly looking to the crown for protection, maintained an unshaken loyalty, until the king was seen to take part with their oppressors. The wrongs of Ireland are the act of the people of England. Ireland is the rival of England in agriculture, manufactures and commerce; and every concession to the former, seems to the multitude to be something taken from the prosperity of the latter. But the representation of Ireland in parliament is to that of England as one to five; and when the Irish people cry to parliament for redress, they are answered as all appeals from minorities are answered by the representatives of majorities. But how would they be answered if the representative and constituent bodies were both thoroughly instructed in the sacred character and paramount authority and importance of the duties which belong to the high function of sovereignty? We justly deny and deride the divine right of kings; and we assert and maintain the divine right of the people to self government. And it is a divine right. It is a corollary from the right and duty to fulfil the purposes of our being, which accompany each one of us into the world. The right and the duty both come from the author of that being. He imposes the one when he gives the other, and thus fixes on us a responsibility which clings to us through life. We deceive ourselves if we think to get rid of any portion of this responsibility by entering into partnership with others, each one of whom brings into the concern the same rights, the same duties, and the same responsibilities;—neither more nor less than ourselves. We do but multiply, and divide again by the same number. Each receives, by way of dividend, the same amount of right, duty, and responsibility that he carried into the common stock. Of so high a nature are these, and so vast are the interests with which they are connected, that it has been truly said, that, whether we mount the hustings or go to the polls, we may well tremble to give or to receive the power which is there conferred.