I gladly avail myself of an established custom, to offer some remarks
on the mutual relation into which we have just entered, and the studies
which will occupy our attention during the ensuing course.
This day is to you the commencement of the most important æra of life.
You have heretofore been engaged in studies, for the most part useful,
but sometimes merely ornamental or amusing. The mind, it is true, can
hardly fail to improve, by the exertion necessary to the acquisition of
knowledge of any kind, even as the athletic sports of the boy harden
and prepare the body for the labors of the man. But, in many
particulars, what you have heretofore learned may be of little
practical value in the business of life; and your past neglects may
perhaps be attended with no loss of prosperity or respectability in
future. Some of you are probably acquainted with sciences of which
others are ignorant; but are not for that reason any better prepared
for the new course of studies on which you are about to enter. Nor will
such knowledge necessarily afford its possessors any advantage at the
bar, or in the senate, or on any of the arenas, where the interests of
individuals and nations are discussed, and the strifes of men decided.
But the time is now past with you, young gentlemen, when you can lose a
moment, or neglect an opportunity of improvement, without a lasting and
irreparable detriment to yourselves. You this day put on the _toga
virilis_, and enter on the _business of life_. This day you commence
those studies on which independence, prosperity, respectability, and
the comfort and happiness of those who will be dearest to you, must
depend. For, trust me, these things mainly depend on excellence in the
profession or occupation, whatever it may be, which a man chooses as
the business of his life. The humblest mechanic will derive more of all
these good things from diligence and proficiency in his trade, than he
possibly can from any knowledge unconnected with it.
This, which is true of all occupations, is most emphatically true of
that which you have chosen. To be eminent in _our_ profession is to
hold a place among the great ones of the earth; and they, who devote
themselves to it, have the rare advantage of treading the path which
leads to the highest objects of honorable ambition, even while walking
the round of daily duties, and providing for the daily wants of private
life. The history of our country is full of proof that the bar is the
road to eminence; and I beg you to remark how few of its members have
attained to this eminence in public life, without having been first
distinguished in the profession. To win _its_ honors, and to wear them
worthily, is to attain an elevation from which all other honors are
accessible: but to turn aside disgusted with its labors, is to lose
this vantage ground, and to sink again to the dead level of the common
mass. You should therefore learn to look on the profession of your
choice, as the source from whence are to flow all the comforts, the
honors, and the happiness of life. Let it be as a talisman, in which,
under God, you put your trust, assuring yourselves that whatever you
seek by means of it you will receive.
I have the more naturally fallen into these remarks, as they are in
some sort suggested, and are certainly justified by the history of this
institution. If you trace back the lives of the men, who at this moment
occupy the most enviable pre-eminence in your native state, you will
find that they received the rudiments of their professional and
political education at this venerable but decayed seminary. There are
certainly distinguished members of the profession, and illustrious men
out of the profession, to whom this remark does not apply. But when
Virginia (_Magna Parens Virum_,) is called on to show her jewels, to
whom does she more proudly point than to men who once occupied those
very seats; who here received the first impulse in their career; who
here commenced that generous strife for superiority which has placed
them all so high.
The subject of our researches, young gentlemen, will be the municipal
law of Virginia. The text book which will be placed in your hands is
the American edition of Blackstone's Commentaries, published thirty
years ago by one of my predecessors in this chair. You will readily
believe that it would be my pride to walk, with filial reverence by the
lights which he has given us, and that, in doing so, I should feel
secure of escaping any harsh animadversion from those to whom I am
responsible, and who still cherish so favorable a recollection of his
services. I shall certainly endeavor to avail myself of this privilege;
though it may be occasionally necessary to assume a more perilous
responsibility. A brief sketch of the plan which I propose to myself,
will show you how far I shall follow, and wherein, and why, I shall
deviate from the path which he has traced.
Municipal law is defined by Mr. Blackstone, "to be a rule of civil
conduct prescribed by the supreme power of the state." By Justinian it
is said, "_Id quod quisque populus sibi jus constituit, vocatur jus
civile_:" which has been well rendered thus: "It is the system of rules
of civil conduct which any state has ordained for itself."
Whatever definition we adopt, we shall find that municipal law is
distinguishable into four grand divisions, which may be properly
designated by the following description:
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.
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.
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.
Gentlemen; if these ideas be just, how important is the duty imposed on
me by that statute of the college which requires me to lecture on
constitutional law! How desirable is it that there should be every
where schools, in which the youth of our country should be thoroughly
imbued with correct opinions and just sentiments on this subject! It
was Agesilaus, I think, who said that "the business of education was to
prepare the boy for the duties of the man." How pre-eminently
important, then, must be that branch of education which is to qualify
him to perform this highest of all social duties, and to bear worthily
his part in that relation which has been characterized as "a
partnership in all science, in all art, in every virtue, and in all
perfection; a partnership, not only between those who are living, but
between those who are living, those who are dead, and those who are yet
to be born."
These striking words, which are from the pen of the celebrated Edmund
Burke, call to mind the high testimony which he has borne in favor of
the study of the law, as a school of political rights. After having
acted an important part in procuring the repeal of the stamp act, he
made his last effort in favor of the rights of the colonies, in March,
1775. On that occasion, laboring to dissuade the British parliament
from pushing America to extremities, he descanted on the love of
freedom, which he pronounced to be the predominating feature in the
character of our fathers. The prevalence of this passion he ascribed to
a variety of causes, none more powerful than the number of lawyers, and
the familiarity of the people with the principles of the common law.
His ideas I will give you in his own words, for it is only in his own
words that his ideas ever can be fittingly expressed.
He says, "In no country perhaps in the world is the law so general a
study. The profession itself is numerous and powerful; and in most
provinces it takes the lead. The greater number of the deputies sent to
the congress were lawyers. But all who read, and most do read, endeavor
to obtain some smattering in that science.... This study renders men
_acute_, _inquisitive_, _dexterous_, _prompt in attack_, _ready in
defence_, _full of resources_. In other countries, the people, more
simple, and of a less mercurial cast, judge of an ill principle in
government only by an actual grievance; _here they anticipate the evil,
and judge of the pressure of the grievance by the badness of the
principle. They augur misgovernment at a distance, and snuff the
approach of tyranny in every tainted breeze._"
Such, young gentlemen, is the important and useful influence which the
study of our profession enables its members to exert. But if, instead
of preparing their minds by this study, the very men to whom the people
look up for light, do but provide themselves with a few set phrases
contrived to flatter and cajole them, what but evil can come of it?
"The people can do no wrong." Why! this if but what all sovereigns hear
from their flatterers. In one sense, it is indeed true of both, for
there is no human tribunal before which either king or people can be
arraigned. But neither can make right and wrong change places and
natures.
"_Vox populi, vox Dei._" "It is the voice of God." So said the Jews of
the impious Herod. But the judgments of the insulted Deity showed how
mere a worm he was; and _his_ judgments are not limited to kings, nor
withheld by numbers. We may preserve all the outward forms of freedom,
the checks and balances of the constitution may remain to all
appearance undisturbed, and yet he who can "curse our blessings" may
give us over to all the evils of despotism, if we do not "lay to heart"
the high duties of that freedom wherewith he has made us free.
I am sensible, young gentlemen, that, to many, these ideas will not be
acceptable. And for an obvious reason. "Men like well enough," it is
said, "to hear of their power, but have an extreme disrelish to be told
of their duties." Yet in a government of equal rights, these are
strictly correlative. The rights of each individual are the exact
measure of the duties which others owe to him, and of coarse, of those
he owes to others. This is so obviously true, that it needs but be
stated, to be recognized at once as a man recognizes his face in the
glass. But _he_ "goeth his way, and straightway forgetteth what manner
of man he was." Let not us do likewise.
But there is another reason why many will hear with impatience of the
difficulties attendant on the proper discharge of duties, which are too
often made the low sport of a holiday revel. None can deny the truth
and justice of the remarks already quoted from Mr. Blackstone; but few,
I fear, are willing to bring them home, and to acknowledge the
necessity of such severe preparation to qualify themselves to exercise
the franchises of a citizen. Let me hope, young gentlemen, that you
will view the matter in a different light, and go to your task with the
more cheerfulness, from the assurance that you will thus be qualified
to derive a blessing to yourselves and to your country, from the
discreet and conscientious exercise of a privilege, which others, from
a want of correct information and just sentiments, so often pervert to
the injury of both.
Before I conclude, give me leave to offer a few remarks on a subject in
which every member of the faculty has an equal and common interest. If
there be any thing by which the University of William and Mary has been
advantageously distinguished, it is the liberal and magnanimous
character of its discipline. It has been the study of its professors to
cultivate at the same time, the intellect, the principles, and the
deportment of the student, laboring with equal diligence to infuse the
spirit of the scholar and the spirit of the gentleman. He comes to us
as a gentleman. As such we receive and treat him, and resolutely refuse
to know him in any other character. He is not harassed with petty
regulations; he is not insulted and annoyed by impertinent
_surveillance_. Spies and informers have no countenance among us. We
receive no accusation but from the conscience of the accused. His honor
is the only witness to which we appeal; and should he be even capable
of prevarication or falsehood, we admit no proof of the fact. But I beg
you to observe, that in this cautious and forbearing spirit of our
legislation, you have not only proof that we have no disposition to
harass you with unreasonable requirements; but a pledge that such
regulations as we have found it necessary to make, _will be enforced_.
If we did not mean to execute our laws, it might do little harm to have
them minute and much in detail on paper. It is because we _do_ mean to
enforce them that we are cautious to require nothing which may not be
exacted without tyranny or oppression, without degrading ourselves or
dishonoring you.
The effect of this system, in inspiring a high and scrupulous sense of
honor, and a scorn of all disingenuous artifice, has been ascertained
by long experience, and redounds to the praise of its authors. That it
has not secured a regular discharge of all academical duties, or
prevented the disorders which characterize the wildness of youth, is
known and lamented. But we believe and know, that he who cannot be held
to his duty, but by base and slavish motives, can never do honor to his
instructers; while we are equally sure that such a system as keeps up a
sense of responsibility to society at large, is most conducive to high
excellence. We think it right, therefore, to adapt our discipline to
those from whom excellence may be expected, rather than to those from
whom mediocrity may barely be hoped. Such a system is valuable too, as
forming a sort of middle term between the restraints of pupilage and
the perfect freedom and independence of manhood. Experience shows that
there is a time of life, when the new born spirit of independence, and
the prurience of incipient manhood will not be repressed. They will
break out in the _airs_ or in the _graces_ of manhood. Between these we
have to choose. The youth of eighteen treated as a _boy_, exhibits the
_former_. Treated as a _man_, he lays aside these forever, and displays
the _latter_. This system is thus believed to afford the best security
against such offences as stain the name of the perpetrator. Of such our
records bear no trace; nor is there, perhaps, a single individual of
all who have matriculated here, that would blush to meet any of his old
associates in this school of honor.
May we not hope then, young gentlemen, when so much is trusted to your
magnanimity, that the dependence will not fail us? May we not hope,
when we are seen anxious to make our relation, not only a source of
profit, but of satisfaction to you, that you will not wantonly make it
a source of uneasiness and vexation to us? I persuade myself that you,
at least, commence your studies with such dispositions as we desire. If
this be so, there is one short rule by which you may surely carry them
into effect. "_Give diligent attention to your studies._" This is the
best security against all unpleasant collision with your teachers, and
against that weariness of spirit which seeks relief in excess or
mischief. It carries with it the present happiness, which arises from a
consciousness of well doing; it supplies that knowledge which
encourages to farther researches, and renders study a pleasure; it
establishes habits of application, the value of which will be felt in
all the future business of life; and lays the foundation of that
intellectual superiority by which you hope to prosper in the world, and
to be distinguished from the ignoble multitude who live but to die and
be forgotten.
_Williamsburg, October 27, 1834_.
For the Southern Literary Messenger.