The dignity and importance of the Profession of the Law, in a public
point of view, can hardly be over-estimated. It is in its relation to
society at large that it is proposed to consider it. This may be done by
showing its influence upon legislation and jurisprudence. These are the
right and left hands of government in carrying out the great purposes of
society. By legislation is meant the making of law--its primary
enactment or subsequent alteration. Jurisprudence is the science of what
the law is or means, and its practical application to cases as they
arise. The province of legislation is _jus dare_--of jurisprudence,
_jus dicere_. The latter is entirely in the hands of lawyers as a
body--the former almost entirely.
Legislation is indeed a nobler work than even jurisprudence. It is the
noblest work in which the intellectual powers of man can be engaged, as
it resembles most nearly the work of the Deity. It is employed as well
in determining what is right or wrong in itself--the due proportion of
injuries and their remedies or punishments--as in enforcing what is
useful and expedient. How wide the scope of such a work! The power of
society over its individual members, or, in other words, sovereignty,
which is practically vested in the legislature, is a type of the Divine
power which rules the physical and moral universe. "There is one
Lawgiver," says the Apostle James. Not that the Supreme Being is the
sole universal lawgiver in the sense of a creator of law, whose will
alone determines the boundaries of right and wrong. God is the creator
of the beings who are the subjects of law. He is the author of law--the
one lawgiver--in the same sense that he, who first discovered a plain
figure, may be said to be the author of all theorems, which may be
predicated of it. He who first called attention to the curious curve,
made by a point in the periphery of a wheel as it turns on the ground,
is in a certain sense the discoverer of all the truths, which may be
mathematically demonstrated in respect to it.
Law in its true sense is not the work of mere will--not an act of
intellectual caprice. It is a severe and necessary deduction from the
relations of things. The Divine legislator sees and knows these
relations perfectly. He can draw no wrong deduction from them. He can
make no mistake. Whatever laws have certainly emanated from Him are
certainly right. This is the sense in which it is true that "there is
one Lawgiver:" all others but attempt the work; He alone is competent to
perform it. There is no mathematical certainty in our reasoning on moral
as there is on physical relations. We know that the three angles of a
triangle are equal to two right angles with an assurance we can never
have in regard to any moral truth whatever. The Divine law is a
deduction necessarily and mathematically certain as much so as any truth
in geometry. Human law can aim only at such a probable deduction as
results from a finite and imperfect knowledge.
The system of law delivered by Moses to the Jews deserves, therefore,
the most careful study at the hands of all who believe him to have been
a divinely commissioned lawgiver. These laws were not intended for any
other people than the Israelites; they were adapted to their
circumstances, climate, country, neighbors, to the period of the world
when they were promulgated, and during which they were to prevail. They
were certainly not meant as a model for any other form of government,
for any other people, or for any other time. Many laws are to be found
there which are unnecessary and superfluous if applied elsewhere. Many
actions, innocent in themselves, are prohibited. All the _mala
prohibita_ are not _mala in se_. But one thing is as clear as a sunbeam,
and that is a very important light to the student of Ethics; if God was
the author of these laws, nothing morally wrong was commanded or
allowed by them. When it was said of the Jews through the prophet, "I
gave them statutes which were not good," it cannot mean not morally
good; laws which it would be sinful in them to obey. The word in the
original is not the word appropriated in that language to right,
conformity to rule, but to goodness in its most general sense. Good
statutes mean wise and expedient statutes. By no process can the logical
mind be brought to the conclusion that the perfectly wise and good
lawgiver, in framing a code of laws for any people, would impose as a
punishment "for the hardness of their hearts," a penalty, submission to
which would itself be punishable as a sin against the law of nature. He
might command or allow as such punishment what in itself was inexpedient
and injurious to them, and which upon the promulgation of a new law
repealing the old and prohibiting what it allowed, would become by the
sanction of the same lawgiver thenceforth universally _malum
prohibitum_. The authority of God as a lawgiver is certainly not
confined to a mere declaration of what is right or wrong by the law of
Nature.
There can be no merely arbitrary laws. It is necessary to bear in mind
that we are now considering the province of the legislator, who ought to
enact no law without an end. "Civil legislative power," says Rutherforth
(B. II, c. vi, s. 10), "is not in the strict sense of the word an
absolute power of restraining or altering the rights of the subjects: it
is limited in its own nature to its proper objects, to those rights only
in which the common good of the society or of its several parts requires
some restraint or alteration. So that whenever we call the civil
legislative power, either of society in general or of a particular
legislative body within any society, an absolute legislative power, we
can only mean that it has no external check upon it in fact; for all
civil legislative power is in its own nature under an internal check of
right: it is a power of restraining or altering the rights of the
subjects for the purpose of advancing or securing the general good, and
not of restraining or altering them for any purpose whatever, and much
less for no purpose at all." There are, therefore, no arbitrary laws
which fulfil the end of law. Doubtless the true objects of society and
government may be mistaken by him who sets up to be law-maker, or if
those objects are properly appreciated, the means for advancing them may
be mistaken. It is not wonderful that in a matter which demands the
highest wisdom, many should try and fail.
It becomes important to inquire what are the true ends of society and
government? Man is a gregarious animal--a social being. He may exist in
solitude, but he cannot enjoy life: he cannot perfect his nature. Those
who have watched and studied closely the habits of those irrational
animals, who live in communities, as the ant, the bee, and the beaver,
have observed not only a settled system and subordination, but the
existence of some wonderful faculty, like articulate speech, by which
communication takes place from one to another; a power essential to
order. Man, the highest social animal in the scale of earthly being,
has also the noblest faculty of communication.
The final cause--the reason why man was made a social being--is that
society was necessary to the perfection of his physical, intellectual,
and moral powers, in order to give the fullest return to the labor of
his hands and to secure the greatest advances in knowledge and wisdom.
It is for no vain national power or glory, for no experimental
abstraction, that governments are instituted among men. It is for man as
an individual. It is to promote his development; and in that consists
his true happiness. The proposition would be still more accurate were it
said, society is constituted that men may be free--free to develop
themselves--free to seek their own happiness, following their own
instincts or conclusions. Without society--and government, which of
course results from it--men would not be free. An individual in a state
of isolation might defend himself from savage beasts, and more savage
men, as long as his strength lasted, but when sickness or age came on,
the product of the labor of his hands, accumulated by a wise foresight
to meet such a contingency, would become the prey of the stronger. The
comparatively weak-minded and ignorant would be constantly subject to
the frauds of the more cunning.
It is enough to look at the effects of the division of employments and
the invention of labor-saving machinery, to recognize the invaluable
results of society in the development of wealth and power. In a state of
isolation a man's entire time and strength would be needed for the
supply of his physical wants. As men advance in knowledge and wisdom the
standard of their mere physical wants is elevated. They demand more
spacious and comfortable dwellings, more delicate viands and finer
clothing.
"Allow not nature more than nature needs,
Man's life is cheap as beasts'."
It is not true that men would be morally better or happier, if their
style of living were reduced to the greatest plainness consistent with
bare comfort. Our taste in this respect, as for the fine arts, as it
becomes more refined, becomes more susceptible of high enjoyment. When
large fortunes are suddenly made by gambling, or what is equivalent
thereto, then it is that baleful luxury is introduced--a style of living
beyond the means of those who adopt it, and spreading through all
classes. Taste, cultivated and enjoyed at the expense of morals,
degrades and debases instead of purifying and elevating character. Men,
who have accumulated wealth slowly by labor of mind or body, do not
spend it extravagantly. If they use it liberally, that creates no envy
in their poorer neighbor, no ruinous effort to equal what is recognized
to be the due reward of industry and economy. The luxury, which
corrupted and destroyed the republic of Rome, was the result of large
fortunes suddenly acquired by the plunder of provinces, the conquests of
unjust wars. The most fruitful source of it, in our own day, is what has
been well termed _class legislation_--laws which either directly or
indirectly are meant to favor particular classes of the community. They
are supported by popular reasons and specious arguments, yet there is
one test of the true character of such laws, an _experimentum crucis_,
of which, in general, they cannot bear the application. Legislation,
which requires or which will pay to be bored or bought, is unequal
legislation; and therefore unwise and unjust. Bentham's rule, though
false as the standard of right and wrong, is in general the true rule of
practical legislation, the greatest good of the greatest number. It is
expressed with the most force and accuracy by that master of the
science, Bynkershoek; _Utilitas, utilitas, justi PROPE mater et aequi_:
in which observe that the word _prope_ is emphatic. Legislation for
classes violates this plain rule of equal justice, and moreover does
not, in the long run, benefit those for whom it is intended. The
indirect evils upon society at large are even more injurious than those
which are direct. Men are often thus poor to-day and rich to-morrow. The
bubble, while it dances in the sunbeam, glitters with golden hues,
though destined almost immediately to burst and be seen no more.
What government owes to society, and all it owes, is the impartial
administration of equal and just laws. This produces security of life,
of liberty, and of property. It has become a favorite maxim, that it is
the duty of government to promote the happiness of the people. The
phrase may be interpreted so as to mean well, but it is a very
inaccurate and unhappy one. It is the inalienable right of men to pursue
their _own_ happiness; each man under such restraints of law as will
leave every other man equally free to do the same. The true and only
true object of government is to secure this right. The happiness of the
people is the happiness of the individuals who compose the mass.
Speaking now with reference to those objects only, which human laws can
reach and influence, he is the happy man, who sees his condition in life
constantly and gradually, though it may be slowly, improving. Let
government keep its hands off--do nothing in the way of creating the
subject-matter of speculation--and things naturally fall into this
channel. There will be some speculators, as there will be some gamblers;
but they will be few. The stock market is filled with fancies, which the
government has manufactured and continues to manufacture to order. It is
the duty of government to encourage the accumulation of the savings of
industry. The best way to do so is to guard the strong box from the
invasion of others, and not itself to invade it. Property has an
especial claim to protection against the government itself. The power of
taxation in the legislature is in fact a part of the _eminent domain_; a
power that must necessarily be reposed in the discretion of every
government to furnish the means of its own existence. One grievous
invasion of property--and of course ultimately of labor, from whose
accumulations all property grows--is by government itself, in the shape
of taxation for objects not necessary for the common defence and general
welfare. Men have a right not only to be well governed, but to be
cheaply governed--as cheaply as is consistent with the due maintenance
of that security, for which society was formed and government
instituted. This, the sole legitimate end and object of law, is never to
be lost sight of--security to men in the free enjoyment and development
of their capacities for happiness--SECURITY--nothing less--but nothing
more. To compel men to contribute of the earnings or accumulations of
industry, their own or inherited, to objects beyond this, not within the
legitimate sphere of legislation, to appropriate the money in the public
treasury to such objects, is a perversion and abuse of the powers of
government, little if anything short of legalized robbery. What is the
true province of legislation, ought to be better understood. It is worth
while to remark, that in every new and amended State constitution, the
bill of rights spreads over a larger space; new as well as more
stringent restrictions are placed upon legislation. There is no danger
of this being carried too far; as Chancellor Kent appears to have
apprehended that it might be. There is not much danger of erring upon
the side of too little law. The world is notoriously too much governed.
Legislators almost invariably aim at accomplishing too much.
Representative democracies, so far from being exempt from this vice, are
from their nature peculiarly liable to it. Annual legislatures--with
generally two-thirds new members every year--increase the evil. The
members fall into the common mistake, that their commission is to act,
not to decide in the first place whether action is necessary. They would
be blamed and ridiculed, if they adjourned without doing something
important. Hence the annual volumes of our Acts of Assembly are
fearfully growing in bulk. It is not merely of the extent of local
legislation, the vast multiplication of charters for every imaginable
purpose, or of the constantly recurring tampering with the most general
subjects of interest, finance, revenue, banking, education, pauperism,
&c., that there is reason to complain; but scarce a session of one of
our legislatures passes without rash and ill-considered alterations in
the civil code, vitally affecting private rights and relations. Such
laws are frequently urged by men, having causes pending, who dare not
boldly ask that a law should be made for their particular case, but who
do not hesitate to impose upon the legislature by plausible arguments
the adoption of some general rule, which by a retrospective
construction, will have the same operation. It is a most monstrous
practice, which lawyers are bound by the true spirit of their oath of
office, and by a comprehensive view of their duty to the Constitution
and laws, which they bear so large a part as well in making as
administering, to discountenance and prevent. It is to be feared, that
sometimes it is the counsel of the party who recommends and carefully
frames the bill, which, when enacted into a law, is legislatively to
decide the cause. It is time that a resort to such a measure should be
regarded in public estimation as a flagrant case of professional
infidelity and misconduct.
This brief sketch of the true province of legislation is enough to
evince its vast importance. How great is the influence of the lawyers
as a class upon legislation! Let any man look upon all that has been
done in this department, and trace it to its sources. He will
acknowledge that legislation, good or bad, springs from the Bar. There
is in this country no class of lawyers confined to the mere business of
the profession--no mere attorneys--no mere special pleaders--no mere
solicitors in Chancery--no mere conveyancers. However more accurate and
profound may be the learning of men, whose studies are thus limited to
one particular branch, it is not to be regretted either on account of
its influence on the science or the profession. The American lawyer,
considering the compass of his varied duties, and the probable call
which will be made on him especially to enter the halls of legislation,
must be a Jurist. From the ranks of the Bar, more frequently than from
any other profession, are men called to fill the highest public stations
in the service of the country, at home and abroad. The American lawyer
must thus extend his researches into all parts of the science, which has
for its object human government and law: he must study it in its grand
outlines as well as in the filling up of details. He is as frequently
called upon to inquire what the law ought to be as what it is. While a
broad and marked line separates, and always ought to separate the
departments of Legislation and Jurisprudence, it is a benefit to both
that the same class of men should be engaged in both. Practice will thus
be liberalized by theory, and theory restrained and corrected by
practice. The mere abstractionist or _doctrinaire_ would aim at the
formation of a code of great simplicity: the practitioner sees in it the
parent of uncertainty and injustice. Legal propositions cannot be framed
with the certainty of mathematical theories. The most carefully studied
language still leaves room for interpretation and construction. Time
itself, which works such mighty changes in all things, produces a state
of circumstances not in the mind of the lawgiver. The existing system,
it may be, is an unwieldy, inconvenient structure, heavy and grotesque
from the mixed character of its architecture outwardly, inwardly its
space too much occupied and its inmates embarrassed by passages and
circuities. The abstractionist would at once demolish it, and replace it
by a light, commodious and airy dwelling, more symmetrical and chaste in
its appearance, better fitted for the comfort and usefulness of its
inhabitants. The practitioner, who has become familiar with it, who
observes and admires that silent legislation of the people, which shows
itself not on the pages of the statute book, and receives its
recognition in courts of justice only after it has ceased to need even
that to give it form and vitality, and who understands, therefore, how,
with little inconvenience, it is made to accommodate itself to every
change of condition, sits down to a careful calculation of the cost and
risk of such wholesale change. History and practical experience, alike,
suggest to him, that the structure is a castle as well as a dwelling, a
place for security as well as comfort; that its foundations have been
laid deeply on the solid rock--its masonry more firmly knit together by
the time it has endured. Yet he will not deny that what can be done
consistently with security ought to be done. It is worse than in vain to
oppose all amendment. It will break down every artificial barrier that
may be reared against it, if it be not quietly and wisely directed in
those channels which it seeks at the least expense to security and
stability. Surely it is not conceding too much to this spirit to admit,
that laws should be composed in accurate but perspicuous language,
without redundancy of words or involution of sentences; that the policy
of public measures should not be wrapt up in the folds of State mystery;
and that all legislation should be based upon the principle of leaving
the greatest liberty of private judgment and action, consistent with
public peace and private security. A blind attachment to principles of
jurisprudence or rules of law because they are ancient, when the
advancement of the useful arts, the new combinations of trade and
business, and the influence of more rapid and general intercourse demand
their repeal or modification, is as much to be deprecated as rash
innovation and unceasing experiment. Indeed it scarcely ever fails to
defeat its own end, and though it may retard for a while, renders the
course of reform more destructive than it otherwise would have been.
True conservatism is gradualism--the movement onward by slow, cautious,
and firm steps--but still movement, and that onward. The world, neither
physically, intellectually, nor morally, was made to stand still. As in
her daily revolutions on her own axis as well as her annual orbit round
the sun, she never returns precisely to the same point in space which
she has ever before occupied, it would seem to be the lesson which the
Great Author of all Being would most deeply impress upon mind as he has
written it upon matter; "by ceaseless motion all that is subsists."
What has thus been very cursorily presented will evince that it is the
province of legislation, by slow and cautious steps, to amend the laws,
to render them more equal in their operation upon all classes, not
favoring the rich more than the poor, nor one class of either more than
another, providing an easy, cheap, and expeditious administration of
justice by tribunals, whose learning and impartiality shall be so
secured as to possess the confidence of the community, and by general
rules for the regulation of conduct and the distribution of estates most
conformed to the analogies of that system, which is familiar to the
people in their common law.
Great as is the influence which the profession of the law can and does
exercise upon the legislation of a country, the actual administration of
law is entirely in their hands. To a large extent by private counsel, by
the publication of works of research and learning, by arguments in
courts of justice to assist those who are to determine what is the law,
and to apply it to the facts, as well as in the actual exercise of
judicature, this whole important province of government, which comes
home so nearly to every man's fireside, is intrusted necessarily to
lawyers.
In this country we live under the protection of written constitutions;
not only so, but written constitutions, which have assumed to place
limits upon the power of majorities, acting at least through their
ordinary representatives. The construction of these constitutions, or
constitutional law as it is termed, forms a very important branch of
American jurisprudence. There have been, and are, in other countries,
charters, written or unwritten--organic or fundamental laws--but without
this distinguishing feature. The fundamental laws, thus established in
point of fact, emanate from the government, and have no sanction beyond
the oath of those intrusted with the administration of them, the force
of public opinion, and the responsibility of the representative to his
constituent. Our constitutions emanate not from the government, but the
State, the society, the creator of the government; and are, therefore,
in the strictest sense of the words, _leges legum_. The radical
principle of our system is, that the act of the legislative body, beyond
or contrary to the power confided to it by the Constitution, is a
nullity, and absolutely void. The courts must so pronounce, and the
executive must execute their judgments with the whole force of the
State. Upon such a subject it is best to use the very language--the
_ipsissima verba_--of John Marshall, as, at the same time, expressing
the doctrine with the greatest force and perspicuity, and presenting, in
the mere statement, the most convincing argument of its importance. "It
is emphatically the province and duty of the judicial department to say
what the law is. Those who apply the rule to particular cases, must, of
necessity, expound and interpret that rule. If two laws conflict with
each other, the courts must decide on the operation of each. So if a law
be in opposition to the Constitution; if both the law and the
Constitution apply to a particular case, so that the court must either
decide that case conformably to the law, disregarding the Constitution,
or conformably to the Constitution, disregarding the law: the court must
determine which of these conflicting rules governs the case. This is of
the very essence of judicial duty. If, then, the courts are to regard
the Constitution, and the Constitution is superior to any ordinary act
of the legislature, the Constitution, and not such ordinary act, must
govern the case to which they both apply. Those, then, who controvert
the principle that the Constitution is to be considered in court as a
paramount law, are reduced to the necessity of maintaining that courts
must close their eyes on the Constitution and see only the law. This
doctrine would subvert the very foundation of all written constitutions.
It would declare that an act, which, according to the principles and
theory of our government, is entirely void, is yet, in practice,
completely obligatory. It would declare that, if the legislature shall
do what is expressly forbidden, such act, notwithstanding the express
prohibition, is, in reality, effectual. It would be giving to the
legislature a practical and real omnipotence with the same breath which
professes to restrict their powers within narrow limits. It is
prescribing limits, and declaring that those limits may be passed at
pleasure." (Marbury _v._ Madison, 1 Cranch, 177.) More weighty words
than these have never, speaking of human things, fallen from the lips of
man: weighty in themselves from their own simple but eloquent
conclusiveness--weightier still from their unspeakable importance, the
immeasurable influence they have had, and, it is to be hoped, will ever
continue to have, upon the destinies of the United States of America.
The judiciary department, though originating nothing, but acting only
when invoked by parties in the prosecution of their rights, is thus
necessarily an important political branch of the government. That
department spreads the broad and impregnable shield of its protection
over the life, limbs, liberty, and property of the citizen, when invaded
even by the will of the majority. Our Bills of Rights are, therefore,
not mere enunciations of abstract principles, but solemn enactments by
the people themselves, guarded by a sufficient sanction. They have not,
perhaps, as yet, carried far enough their provisions for the security of
property from the unjust action of government. The obligation of
contracts has been declared sacred; the right of eminent domain
restricted by the provision for compensation. Yet, even as to contracts,
the legislature may still exercise dangerous powers over the remedy,
short of taking it away entirely, and over the rules of evidence. As to
eminent domain, they possess an undefined right to determine the time
and manner of ascertaining the compensation. Our constitutions are
frequently undergoing revision; and too much care cannot be exercised to
strengthen our securities in this quarter. Personal liberty, trial by
jury, the elective and other political franchises, liberty of
conscience, of speech and of the press, are able to protect themselves
in a great measure from their own democratic affinities. It is true,
that there really is no difference between wresting from a man the few
dollars, the products or savings of his industry for any period of time,
and depriving him of his liberty, or chaining him to a log, to work for
another during the same period. Property eminently stands in need of
every parchment barrier, which has been or can be thrown around it. An
eminent Judge in our own State once threw out the opinion that there
existed in the Constitution no disaffirmance of the power of the
legislature to take the property of an individual for _private uses_
with or without compensation. "The clause," he argued, "by which it is
declared that no man's property shall be taken or applied to _public_
use, without compensation made, is a disabling, not an enabling one, and
the right would have existed in full force without it." (Harvey _v._
Thomas, 10 Watts, 63.) Fortunately, the decision of the court in that
case did not require a resort to that reasoning, and but little
examination was sufficient to satisfy the mind that this _obiter dictum_
was unsustained by either principle or authority. A power in the
legislature to take the property of A. and give it to B. directly, would
be of the very essence of despotism. When it is declared in the Bill of
Rights that no man shall be deprived of his life, liberty, or property,
unless by the judgment of his peers, or the law of the land, this
phrase, "law of the land," does not mean merely an act of the
legislature. If it did, every restriction upon the legislative
department would be practically abrogated. By an authority as old as
Lord Coke, in commenting upon these same words in _Magna Charta_, they
are to be rendered "without due process of law: that is, by indictment
or presentment of good and lawful men, when such deeds be done in due
manner, or by writ original of the common law, without being brought
into answer but by due process of the common law." (2 Inst. 50.) The
American laws are numerous and uniform to the point (see 1 American Law
Mag. 315); and the same eminent Judge, to whom reference has been made
in a later case, declared his adhesion to the sound and true doctrine in
the most emphatic language, without noticing his own previous _dictum_
to the contrary. "It was deemed necessary," said he, "to insert a
special provision in the Constitution to enable them (the legislature)
to take private property even for public use, and on compensation made;
but it was not deemed necessary to disable them specially in regard to
taking the property of an individual, with or without compensation, in
order to give it to another, not only because the general provision in
the Bill of Rights was deemed sufficiently explicit for that, but
because it was expected that no legislature would be so regardless of
right as to attempt it. Were this reasonable expectation to be
disappointed, it would become our plain and imperative duty to obey the
immediate and paramount will of the people, expressed by their voices in
the adoption of the Constitution, rather than the repugnant will of
their delegates acting under a restricted but transcended authority."
(Norman _v._ Heist, 5 W. & S. 171.)
Yet, while the right of private property cannot be thus directly
invaded, its security against the acts of the legislature is not as
perfect as it might and ought to be made. The legislature must be
allowed a large discretion in judging what is a public use: on that
pretext much may be brought within its sweep unjustly, and the courts,
in the absence of a constitutional rule, would be embarrassed in
defining its limits. Experience has shown that much power to do wrong
lurks under grants by no means essential to the public good. Besides
what has been before referred to, the assumption of judicial functions
by the Legislature and the broad field of Chancery jurisdiction over
trust estates, which it has been held that they may exercise
immediately, if they see fit, instead of vesting them in appropriate
tribunals, are fraught with serious danger. The proneness of bodies so
constituted to disembarrass themselves of the ordinary rules of
evidence, to act upon _ex parte_ statements and testimony imperfectly
authenticated, as well as the absence of all legal forms from their
proceedings, and their numbers, among whom the responsibility of giving
due attention to the case is divided, add to the peril. The power of
legislating retrospectively has far too wide a scope; the constitutional
inhibition of _ex post facto_ laws having been construed to apply to
criminal or penal cases merely, restraining the legislature from making
that an offence which was not so at the time of its commission, or
increasing the punishment annexed to it. The course of legislation in
this country amply demonstrates the wisdom, and even necessity, of
extending the same prohibition to civil cases. There is no particular
or partial inconvenience, which could outweigh the general benefits of a
provision that no law, public or private, should operate retrospectively
upon past acts; that the judgment of the tribunals upon every case
should be according to the law as it was at the time of the transaction,
which the parties were bound to know, and in accordance with which they
are to be presumed to have acted.
As well in the domain of public as of private law, the great fundamental
principle for judge and counsellor ought to be, THAT AUTHORITY IS
SACRED. There is no inconvenience so great, no private hardship so
imperative, as to justify the application of a different rule to the
resolution of a case, than the existing state of the law will warrant.
"There is not a line from his pen," says Mr. Binney of Chief Justice
Tilghman, "that trifles with the sacred deposit in his hands by claiming
to fashion it according to a private opinion of what it ought to be.
Judicial legislation he abhorred, I should rather say, _dreaded_, as an
implication of his conscience. His first inquiry in every case was of
the oracles of the law for their response; and when he obtained it,
notwithstanding his clear perception of the justice of the cause, and
his intense desire to reach it, if it was not the justice of the law, he
dared not to administer it. He acted upon the sentiment of Lord Bacon,
that it is the foulest injustice to remove landmarks, and that to
corrupt the law is to poison the very fountains of justice. With a
consciousness that to the errors of the science there are some limits,
but none to the evils of a licentious invasion of it, he left it to our
annual legislature to correct such defects in the system as time either
created or exposed; and better foundation in the law can no man lay." It
is not to be denied that there is some difficulty in stating with
accuracy the limits of the rule _stare decisis_. One, or even more than
one, recent precedent, especially when it relates to the application
rather than to the establishment of a rule, is not of so binding a
character that it must be followed, even though contrary to principles
adjudged in older cases: but it is just as clear that when a decision
has been long acquiesced in, when it has been applied in numerous cases,
and become a landmark in the branch of the science to which it relates,
when men have dealt and made contracts on the faith of it, whether it
relates to the right of property itself, or to the evidence by which
that right may be substantiated, though it may appear to us "flatly
absurd and unjust," to overrule such a decision is an act of positive
injustice, as well as a violation of law, and an usurpation by one
branch of the government upon the powers of another. An example will
illustrate this position. In the case of Walton _v._ Shelley (1 Term
Rep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice,
decided that a person is not a competent witness to impeach a security
which he has given, though he is not interested in the event of the
suit, on the trial of which he is offered. In Jordaine _v._ Lashbrooke
(7 Term Rep. 601), the same court, in 1798, under the presidency of Lord
Kenyon, rightly overruled that decision. Now it so happens that Walton
_v._ Shelley was recognized as authority and followed in Pennsylvania,
in 1792, in Stille _v._ Lynch (2 Dall. 194), before it had been
overruled in England: and though limited as it was understood to be in
Bent _v._ Baker (3 Term Rep. 34), to negotiable paper (Pleasants _v._
Pemberton, 2 Dall. 196), it has never been varied from since that time,
though it has frequently been admitted that Walton _v._ Shelley was
properly overruled. It ought not now to be overruled in Pennsylvania.
"After the decisions cited," says Judge Rogers, in Gest _v._ Espy (2
Watts, 268), "this cannot be considered an open question, nor do we
think ourselves at liberty now to examine the foundations of the rule."
Unfortunately our Supreme Court have not always put this sound and wise
limitation upon their own power. In the case of Post _v._ Avery (5 W. &
S. 509), they declared in regard to a rule of more than thirty years'
standing, and confirmed by numerous cases, that they had "vainly hoped
that the inconvenience of the rule would have attracted the attention of
the legislature, _who alone are competent to abolish it_;" but as
nothing was to be expected from that quarter, "they were driven by
stress of necessity" to overrule a case expressly decided on the
authority of the rule. (Hart _v._ Heilner, 3 Rawle, 407.) And two years
afterwards, after having made the remarkable declaration that the
legislature alone was competent to abolish the rule, they nevertheless
pronounced it "exploded altogether." (McClelland _v._ Mahon, 1 Barr,
364.)
Lord Bacon says of retrospective laws: "_Cujus generis leges raro et
magna cum cautione sunt adhibenda: neque enim placet Janus in legibus._"
Without any saving clause may the epithet and denunciation be applied to
judicial laws. They are always _retrospective_, but worse on many
accounts than _retrospective statutes_. Against the latter we have at
least the security of the constitutional provision that prohibits the
passage of any law, which impairs the obligation of a contract,
executory or executed; and it has been well held that this prohibition
applies to such an alteration of the law of evidence in force at the
time the contract was made, as would practically destroy the contract
itself by destroying the only means of enforcing it. There is no such
constitutional provision against judicial legislation. It sweeps away a
man's rights, vested, as he had reason to think, upon the firmest
foundation, without affording him the shadow of redress. Nor could
there, in the nature of things, be any such devised. When a court
overrules a previous decision, it does not simply repeal it; it must
pronounce it never to have been law. There is no instance on record, in
which a court has instituted the inquiry, upon what grounds the suitor
had relied in investing his property or making his contract, and
relieved him from the disastrous consequences, not of his, but of their
mistake, or the mistake of their predecessors. The man who, on the faith
of Steele _v._ The Ph[oe]nix Ins. Co. (3 Binn. 306), decided in 1811,
and treated as so well settled in itself and all its logical
consequences, that in 1832 (Hart _v._ Heilner, 3 Rawle, 407) the Supreme
Court, declined to hear the counsel, who relied on its authority,
invested his money in the purchase of a claim which could be proved only
by the testimony of the assignor, found himself stripped of his property
by a decision in 1845, the results of which were broader than even the
legislature itself would have been competent to effect, or indeed the
people themselves in their sovereign capacity, at least so long as the
Constitution of the United States continues to be "the supreme law of
the land, anything in the _constitution_ and laws of any State to the
contrary notwithstanding."
But judicial is much worse than legislative retrospection in another
aspect. The act of Assembly, if carefully worded, is at least a certain
rule. The act of the judicial legislature is invariably the precursor of
uncertainty and confusion. Apply to it a test, which may be set down as
unerring, never failing soon to discover the true metal from the base
counterfeit: its effect upon litigation. A decision in conformity to
established precedents is the mother of repose on that subject; but one
that departs from them throws the professional mind at sea without
chart or compass. The cautious counsellor will be compelled to say to
his client that he cannot advise. One cause is the general uncertainty
to which it leads. Men will persuade themselves easily, when it is their
interest to be persuaded, that if one well-established rule has been
overthrown, another, believed to be quite as wrong and perhaps not so
well fortified by time and subsequent cases, may share the same fate.
Shall counsel risk advising his client not to prosecute his claim or
defence, when another bolder than he, may moot the point and conduct
another cause resting upon the same question to a successful
termination? The very foundations of confidence and security are shaken.
The law becomes a lottery, in which every man feels disposed to try his
chance. Another cause of this uncertainty is more particular. A court
scarcely ever makes an open and direct overthrow of a deeply founded
rule at one stroke. It requires repeated blows. It can be seen to be in
danger, but not whether it is finally to fall. Hence it frequently
happens that there is a sliding scale of cases; and when the final
overthrow comes, it is very difficult to determine, whether any and
which steps of the process remain. Shortly after the decision in Post
_v._ Avery, the case of Fraley _v._ Bispham was tried in one of the
inferior courts; in which the Judge, thinking that Post _v._ Avery,
however the intention may have been disclaimed, did in fact overrule
Steele _v._ The Ph[oe]nix, rejected as incompetent one of the nominal
plaintiffs, a retiring partner, who upon dissolution had sold out for a
price _bona fide_ paid, all his interest in the firm to his copartners,
who continued the business. A motion was made for a new trial, and
before the rule came on to be heard, Patterson _v._ Reed (7 W. & S. 144)
had appeared, and the court, on the authority of that case, which
decided that an assignment must be colorable and made for the purpose of
rendering the assignor a witness in order to exclude him, ordered a new
trial. Before the case was again called for trial, the first volume of
Barr's Reports had been published, in which the Supreme Court said:
"The time is come, when the doctrine of Steele _v._ The Ph[oe]nix Ins.
Co. must be exploded altogether. The essential interests of justice
demand that the decision in that case be no longer a precedent for
anything whatever." (McClelland _v._ Mahon, 1 Barr, 364.) And the Judge
before whom the cause was then tried had no other course left, but again
to reject the witness, the very same thing on account of which a new
trial had been ordered.
The case of Post _v._ Avery is a most striking illustration of judicial
legislation and its mischievous results. It is usual to hear it excused
on account of the unequal and unjust operation of the rule reversed, by
which one party was heard but not the other, and the temptation it held
out for the manufacture of false claims, to be supported by perjury. But
it is to lose sight of the real question involved to raise such an
issue: for, like the execution of a notorious culprit by the expeditious
process of a mob and a lamp-post, instead of the formalities and delays
of law and courts, it may be a very good thing for the community to
have rid itself of the offender, but the way by which it was
accomplished was a heavy blow at the very root of the tree of public and
private security.
There is another decision of the Supreme Court of Pennsylvania, not so
bold and avowed an act of judicial legislation as that just mentioned,
but not less transparent, which may be cited as strongly illustrating
the same consequences of uncertainty and litigation flowing from a
disregard of the principle adverted to. From the year 1794, there had
existed in Pennsylvania an act of Assembly limiting the lien of the
debts of a decedent on his real estate, at first to seven, afterwards to
five years. No question ever arose before the court in regard to it.
Lien was considered to mean lien and not obligation: lands to be subject
to execution for all debts of the owner prosecuted to judgment, and of
course not barred by the Statute of Limitations; and the limitation of
the lien merely intended for the protection of purchasers from the heirs
or devisees or their lien creditors. Such was recognized to be the true
meaning of the law in 1795 (Hannum _v._ Spear, 1 Yeats, 566), and so
distinctly ruled in 1830 (Bruch _v._ Lantz, 2 Rawle, 392); yet on
grounds palpably only relevant to what, in the opinion of the court, the
law ought to be, it was held in 1832, in Kerper _v._ Hoch (1 Watts, 9),
that the period named was a limitation not of the lien but of the debt
itself, and available in favor of heirs and devisees, volunteers under
the debtor and succeeding to his rights _cum onere_. As we have seen,
but two cases are to be produced of litigation arising out of this law
carried to the highest tribunal from 1794 to 1832. More than twenty
cases are to be found reported since, in which that court has been
called upon to draw distinctions and settle the precise extent of their
own law. Thus a little complicated system has grown up on this
construction of the act. A volume, indeed, might be written on Kerper
_v._ Hoch and its satellites, when if the act had been let alone to
speak for itself, and the prior decision followed, it would have been a
simple and intelligible rule of action, until the legislature saw fit
to alter it. It seems that this consideration pressed upon at least one
of the judges, who joined in that decision; for in a subsequent case,
when Kerper _v._ Hoch was cited, that Judge, with characteristic candor,
interrupted the counsel with the remark: "We will abide by the rule, but
it was erroneously decided." (Hocker's Appeal, 4 Barr, 498.)
This, then, is the legitimate province of Jurisprudence, _Stare super
antiquas vias_, to maintain the ancient landmarks, to respect authority,
to guard the integrity of the law as a science, that it may be a certain
rule of decision, and promote that security of life, liberty, and
property, which, as we have seen, is the great end of human society and
government. Thus industry will receive its best encouragement; thus
enterprise will be most surely stimulated; thus constant additions to
capital by savings will be promoted; thus the living will be content in
the feeling that their earnings are safely invested; and the dying be
consoled with the reflection that the widow and orphan are left under
the care and protection of a government, which administers impartial
justice according to established laws.
With jurisprudence, lawyers have the most, nay all, to do. The opinion
of the Bar will make itself heard and respected on the Bench. With sound
views, their influence for good in this respect may well be said to be
incalculable. It is indeed the noblest faculty of the profession to
counsel the ignorant, defend the weak and oppressed, and to stand forth
on all occasions as the bulwark of private rights against the assaults
of power, even under the guise of law; but it has still other functions.
It is its office to diffuse sound principles among the people, that they
may intelligently exercise the controlling power placed in their hands,
in the choice of their representatives in the Legislature and of Judges,
in deciding, as they are often called upon to do, upon the most
important changes in the Constitution, and above all in the formation of
that public opinion which may be said in these times, almost without a
figure, to be _ultimate sovereign_. Whether they seek them or are
sought, lawyers, in point of fact, always have filled, in much the
larger proportion over every other profession, the most important public
posts. They will continue to do so, at least so long as the profession
holds the high and well-merited place it now does in the public
confidence.